Dunn v Blue Mountains City Council

CASES CITED: Architects Haywood and Bakker Pty Limited v North Sydney Council [2000] NSWLEC 138 ; Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2000] NSWCA 289

APPLICANT Mrs M L Taylor, solicitor SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES:

RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10114 of 2006 Richard Dunn v Blue Mountains City Council

JUDGMENT 1 This is an appeal against the refusal by Blue Mountains City Council (the council) of a development application (DAS/29/2004) to subdivide one existing allotment into two allotments at Lot 5 DP758448, 40 Prince Street, Glenbrook (the site).

2 The site, its context and the history of the application are in the Statement of Basic Facts. Briefly the site has an area of 2,026 sqm with frontages to Prince Street and Lemaires Lane. It is located on the urban/bushland interface within 200 m of the Blue Mountains National Park.

3 The site is one of 10 allotments between Prince and Reading Streets that have not been subdivided since the original plan depicting the village of Glenbrook. The lots have probably not been subdivided due to their fringe locations, slope constraints and watercourses. Also, some of these lots are in public ownership.

4 The site has large areas with a slope greater than 20 per cent and is bisected with a watercourse which is now piped. There is a partly constructed garage/studio on the north-east corner of the site. The remainder of the site has some large trees with an under-storey of weeds and grasses.

5 The proposal is to adjust the boundary between Lot 5 and Lot 4 and to subdivide the residual area into two lots, Lot 5A and Lot 5B, each with an area of 930.4 sqm and a frontage of 18.5 m to Prince Street.

6 The appeal was heard on-site. The Court heard expert planning evidence from Mr G Falson, for the applicant, and Mr W Langevad, for the council. Dr K Weston, 9 Fletcher Street, Glenbrook, whose property adjoins the site to the south-east, was concerned about the impact of any future houses on the character of the area given the constraints of the site.

7 The site is zoned Living - Bushland Conservation under Blue Mountains Local Environmental Plan 2005 (LEP 2005). The proposal does not comply with cl 90 of LEP 2005 which requires a minimum lot size of 1,200 sqm and a minimum frontage of 22 m. Further, cl 90(9) relevantly provides:

A lot created within the Living-Bushland Conservation zone intended as a site for a dwelling house is to include a development space that:

a) has an area of land not less than 750 square metres, and b) is configured so as to be capable of accommodating development for the purpose of a dwelling house, and c) incorporates that part of any asset protection zone required to be established or maintained on that lot, and d) ….. e) is not development excluded land. 8 Development excluded land is defined in LEP 2005 and includes land that is designated on Map B as a Protected Area - Slope Constraint Area. Clause 3(3) of LEP 2005 states that the provisions of State Environmental Planning Policy No. 1 do not apply to cl 90(9). This would have the effect that non-compliance with this standard is a prohibition on development.

9 However, the application was lodged in May 2004 prior to the gazettal of LEP 2005, consequently the savings provisions in cl 6(4) apply to the application which provide: Local environmental plans (including Blue Mountains Local Environmental Plan No 4) as in force immediately before the commencement of this plan, apply to a development application that was made but had not been finally determined before that commencement as if this plan had been exhibited but had not been made.

10 Under Blue Mountains Local Environmental Plan No 4 (LEP 4) the site is zoned Residential 2(a)(1). The proposal is permissible with consent. Clause 33(2)(c) of LEP 4 permits a minimum lot size of 700 sq m and a minimum frontage of 18.5 m. The proposal complies with these requirements.

11 Consistent with the decisions in Architects Haywood and Bakker Pty Limited v North Sydney Council [2000] NSWLEC 138 and Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2000] NSWCA 289, the parties agreed that LEP 2005 was imminent and certain as it had been gazetted. Even with the savings provisions, Mr Seton, for the council, stated that LEP 2005 should be given considerable weight. Mrs Taylor, for the applicant, stated it should be considered seriously.

12 The parties agreed that the key question to be considered was whether the proposal met the planning approach in LEP 2005, but disagreed as to whether this was achieved. Mr Seton submitted that the proposal does not meet the numerical controls or the planning objectives behind these controls. Mr Langevad explained the rationale behind these controls as being:

13 Lot size - to retain the environmental attributes and the intended low density character of development on the urban bushland fringe. Mr Langevad explained that the increase in minimum allotment sizes between LEP 4 and LEP 2005 was the result of extensive study, consultation and review, including a Commission of Enquiry. He referred to the research in the Residential Subdivision Study undertaken in 2002.

14 Frontage - to maintain streetscape character by providing sufficient width so that buildings do not stretch across the whole site to provide space between buildings and maintain the bushland setting. The control also seeks to provide a ratio between street frontage and depth of site.

15 Development space - to ensure that an allotment has sufficient unconstrained space to provide a reasonable dwelling plus ancillary structures. The sites within the Living-Bushland Conservation zone are generally constrained through slope, watercourses and significant vegetation. Although numerically large there are only certain areas that are suitable for development that would minimise environmental impact.

16 Mr Langevad considered the proposal's non-compliance with the development space control to be significant. Based on Map B - Slope Constraint of LEP 2005, the area that remained as development space once the slope affected area was excluded was 494 sqm on Lot 5A and 420 sqm on Lot 5B. In his opinion this would not provide sufficient space for a house and ancillary structures without encroaching into the constrained area which would be likely to have environmental consequences and be inconsistent with the planning approach in LEP 2005.

17 Mr Falson provided different, much larger amounts, as to the available development space which were based on the survey of the site. However, under cross-examination, he noted that the survey did not appear to accord with what was physically on parts of the site and did not show contours for these areas. He accepted that a smaller development space would be available but considered that a suitable building could be constructed on each site although not ancillary areas.

18 Mr Falson and Mr Langevad agreed that for environmentally constrained sites, such as Lot 5, a subdivision application should be accompanied by a building envelope to better determine the capability of the site for development prior to subdivision.

19 Mrs Taylor's submission was that the subdivision application was consistent with what had occurred on other blocks in the immediate vicinity. The proposal complied with LEP 4 and would be the last application under this regime. As such it would not set a precedent and its assessment should be considered under the savings provisions as a "special case". She further submitted that although it did not comply with the controls in LEP 2005 it met the planning approach as there was sufficient space on each allotment to construct a house that could maintain the bushland character and low density of the area.

20 Mrs Taylor offered a condition that would restrict any house on Lot 5B to the area approved for the studio/garage. This is partly constructed on slope affected land and therefore a new dwelling in this location would, in her submission, have no adverse impacts if carefully designed.

21 While there is some merit in this proposal I do not consider that, from the information provided, this can occur or that it would meet the planning approach in LEP 2005. LEP 2005 must be given considerable weight and the proposed subdivision should be consistent with its planning approach. The proposal is clearly not. The site is large and adjoins other large sites but it is constrained by areas of slope and a gully through the centre. It is therefore clear that only small areas of the site can be developed without encroaching into the constrained part of the site. While development could occur on these steeply sloping parts of the site it would entail modifications to the land through cut and fill or pier and beam construction and there would be likely implications for bushfire design, geo-technical issues, water run-off et cetera.

22 LEP 2005 recognises that development on constrained sites will occur but places a strict assessment regime on such development. As stated by Mr Langevad, such development is seen as a compromise but is allowed on existing allotments which recognises the right of such allotments to be developed. It is not, however, something LEP 2005 anticipates occurring through the creation of new allotments. The existing allotment provides only just enough development space required under LEP 2005. If the site is subdivided into two, both allotments will have significantly less area available for development that is unconstrained. There is no justification for this to occur.

23 No information was provided to the Court that demonstrated how two dwellings could be placed on the site and maintain its bushland character. While I am sure that houses could be built on the site I am not satisfied that this could be done appropriately or in a manner consistent with the planning approach in LEP 2005. The difference in allotment sizes in the area where the site is located and the eastern side of Fletcher Street demonstrates how the character can change significantly with different subdivision patterns. The southern side of Prince Street is bushland where it is intended that houses will be inserted, with the natural landscape dominating over the built form to provide a transition between urban development and the National Park. The east of Fletcher Street has been predominantly subdivided consistent with LEP 4. This provides houses in garden settings. While this may be appropriate it provides an urban or suburban character and one that is different to what is envisaged by the planning approach for the Living - Bushland Conservation zone. Order 24 For the above reasons the application must fail. The orders of the Court are: 1. The appeal is dismissed. 2. Development application (DAS/29/2004) to subdivide one existing allotment into two allotments at 40 Prince Street, Glenbrook (Lot 5 DP758448) is refused. 3. The exhibits may be returned.

              Annelise Tuor
              Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.