Graham v Ku-ring-gai Municipal Council

CASES CITED: Winten Property Limited v North Sydney Council [2001] NSWLEC 46 Wehbe v Pittwater Council [2007] NSWLEC 827

APPLICANT Mr P. McEwen, SC Instructed by M. McMahon of M E McMahon & Associates LEGAL REPRESENTATIVES:

RESPONDENT Mr N. Howie, solicitor with Ms N. Jones, solicitor of Wilshire Webb Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Background 1 Mr Graham lodged this appeal against council's refusal of a 2-lot residential subdivision at 22 Roland Ave, Wahroonga. The issues identified for the appeal concern: o Inadequate lot size involving consideration of a SEPP 1 Objection. o Future development of the lot. o Public interest matters, comprising objections from residents about changes to the character of the area, traffic impacts and precedence considerations. The site 2 This site is described as Lot B in DP 309720 and is located on the eastern side of Roland Ave, to which it has a 14.225m frontage and extends through to Marshall Ave, where it has a 14.315m frontage. The site has a total area of 1184.6 sqm.

3 The site currently contains a single storey brick dwelling fronting Roland Avenue. The site falls to Marshall Ave in the order of 20%. Two large Sydney Blue Gums are located on the Marshall Ave boundary.

4 Adjoining the site to the north is 20 Roland Ave and 31 Marshall Ave, that were created by a subdivision approved by Council in February 2001. These lots have areas of No 20 - 582.1 sqm and No 31 - 581.5 sqm. 5 No 24 Roland Ave adjoins to the south and contains an approved dual occupancy. No 24 has an area of 647.4 sqm and No 35 Roland Ave has an area of 558 sqm.

The Proposal 6 This proposal involves the creation of: o Lot 1; containing the existing dwelling (No 22) fronting Roland Ave. Its proposed area is 584.2 sqm. o Lot 2; a new allotment fronting Marshall Ave and having an area of 600.4 sqm. It is proposed to create a 1m wide drainage easement along the northern boundary. Planning Controls 7 Ku ring-gai Planning Scheme Ordinance (KPSO); under which the site is zoned Residential 2(c) and the development is permissible with consent. However cl 58B contains a development standard of 929 sqm for the minimum lot size and a width of not less than 18m at a distance of 12.2m from the street alignment. This clause does not apply to SEPP 53 developments. 8 Clause 43 (3) restricts the erection of a dwelling house on any allotment in the Residential No 2(c) zones on lots with areas less than 929 sqm.

9 Schedule 9 contains the following aims and other specific objectives relative to the residential zones: 1 (a) to maintain and, where appropriate, improve the existing amenity and environmental character of residential zones; and (b) to permit new residential development only where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development. 10 Development Control Plan No 38 - The Ku-ring-gai Residential Design Manual.

12 State Environmental Planning Policy No 1 Development Standards

14 State Environmental Planning Policy 55 (Remediation of Land).

15 Regional Environmental Planning Policy 20 - Hawkesbury-Nepean River.

The evidence 16 Detailed evidence was presented by Ms S McCarry, council's executive planner and Mr P Graham, the applicant's consulting surveyor and planner. A number of residents expressed their concerns and these have been considered in conjunction with the written objections.

17 The threshold matter concerns the size of the proposed allotments and the acceptability of the SEPP 1 Objection.

18 According to Mr Graham's evidence, the adjoining Lot A to the north (No 20) was subdivided into 2 lots with areas of 582.1 sqm and 581.5sqm. Then in 2002, the adjoining southern boundary lot (No 24) was subdivided into lots with areas of 647 sqm and 558 sqm. These lots are considerably smaller than the development standard provisions and he says the proposal is consistent with these adjoining lots, therefore meriting consent. 19 Against this, Ms McCarry says that relative to the minimum subdivision standard of 929 sqm, the area deficiency is in the order of 35%, which when considered with the undersized frontage of the new lot is unacceptable because: o Application of the 12-14m front setback, the side boundary setbacks and rear setbacks controls results in the remaining potential building footprint being inadequate to facilitate the construction of a reasonable house. o The proposed smaller allotments are inconsistent with the character of the locality, where the allotments predominantly range upwards of 700 sqm. o The neighbouring under-sized allotments were approved under different planning controls and should not be taken as a bench mark for lot size. o The SEPP 1 is not well founded.

SEPP 1 Objection 20 The SEPP 1 acknowledges that the minimum lot size and frontages are development standards. Accordingly, the SEPP 1 states that compliance with the standard is unnecessary and unreasonable because: o The proposed subdivision of the existing lot will not alter or adversely effect the physical environmental conditions on the site and the subdivision meets the aims and objectives of the Residential Zone 2c in the KPSO. 21 The SEPP 1 then analyses the proposal's compliance with these aims and objectives and concludes as follows: o The proposal will create a new lot fronting Marshall Ave, which will allow the erection of a new house that enables the existing overgrown area to be cleaned up and reduce bush fire risk. o It is possible to erect a new dwelling on the proposed new lot with appropriate setbacks, access and private open space that is consistent with the more recently developed adjoining lots. o The subdivision will maintain and improve the existing amenity and environmental character of the zone and will provide for new residential development that is compatible with the existing environmental character of the locality by following the example of adjoining development. o Any future dwelling on proposed Lot 2 would be similar in height, size and bulk than that of the adjoining development. o Subdivision will create a new allotment that will provide for the promotion and coordination of the orderly and economic use and development of the land. An additional residential allotment will provide an additional dwelling opportunity in an existing serviced area within close proximity of shops, schools, and transport. o There will be no adverse impact on the existing mature trees near the Marshall Ave frontage.

22 In reviewing the SEPP 1, Ms McCarry followed the 5 part test detailed by Lloyd J in Winten Property Limited v North Sydney Council [2001]. From this, she says the underlying objective or purpose behind the standard is to: o Maintain the existing amenity and environmental character of the residential zone. o Provide sufficient area for construction of future buildings with adequate aspect, outlook and private outdoor living areas, while conforming to the established building character of the locality and in accordance with the objectives and policies for residential zones, as set out in Schedule 9 of the KPSO. Likewise, the development standard aims to ensure subsequent residential development will be consistent with the design requirements set out in Development Control Plan 38. o Provide sufficient area to permit vehicles to enter and leave the site in a forward direction while providing adequate area for a reasonable size dwelling and associated private open space consistent with KPSO & DCP 38 objectives and controls. o Provide a better presentation to the street.

23 On this basis Ms McCarry does not support the SEPP 1 because: o Even though the adjoining allotments are similar in size to the proposed allotments, they were approved under other planning instruments. o The proposed subdivision will have an adverse impact on the surrounding environment because it will result in a general change in the overall subdivision pattern of the area, with smaller allotments of approximately 500 to 600 sqm, as compared to the prevailing allotment size in the order of 700 -950 sq m. o It is unlikely that any new dwelling can fully comply with DCP 38 given the smaller size and the narrow site width (14.3 m) and the limited solar access due to the shadow impact from the adjoining northern 2-storey dwelling. The adjoining dwelling to the north (31 Marshall Ave), which is similar in size to the proposed subdivision, does not comply with the setback requirements stipulated in DCP 38 and it is likely that a future dwelling on Lot 2 would similarly fail to comply with the minimum allotment size. Therefore, it has not been demonstrated that any proposed dwelling can satisfy the objectives of Schedule 9 of the KPSO and DCP 38. o The SEPP 1 objection has not established that the aims of the development standard would be achieved, despite its non-compliance. Conclusions 24 The threshold matter in this case is whether the SEPP 1objection to the minimum subdivision lot size development standard has been made out. The applicant's main proposition is that the SEPP 1 should be allowed because the proposal is consistent with the adjoining properties and will not adversely effect any environmental considerations. The SEPP 1 objection was assessed differently by the planners, with Ms McCarry relying on the 5 part test in Winten Property Group v Limited v North Sydney Council [2001] NSWLEC 46.

25 Considering these different approaches taken by the planners, reference was also made to the matter of Wehbe v Pittwater Council [2007] NSWLEC 827, where His Honour Preston CJ dealt with SEPP 1 objection assessment. At para 75 he stated that: "it is not sufficient to merely point to an absence of environmental harm."

26 Accordingly, the current SEPP 1's main proposition would not be satisfied on this basis.

27 Apart from this, the applicant refers to the general aims of the 2(c) zone, which requires the development to maintain, and where appropriate improve the existing amenity and environmental character of residential zones. In this assessment, the applicant relies on the amenity and character created by the recently created, smaller allotments immediately adjoining the subject land.

28 However, it seems to me that it is more appropriate to consider a wider neighbourhood area, rather than just the adjoining lots. It is apparent that the north-south section of Marshall Ave has a reasonably obvious character of dwellings on larger allotments, which are in excess of 700 sq m, as stated by Ms McCarry. As such they have varied setbacks, which enables the built form to generally follow the sloping land topography, without excessive cut and then be well screened with substantial vegetation. 29 The more recent dwellings at Nos 31 and 35 Marshall Ave are considerably more prominent in the streetscape, involve more cut/excavation and have a much greater site coverage. I therefore do not consider these adjoining neighbouring properties represent the broader character of this residential zone and consequently the proposal would not maintain or enhance the amenity or environmental character of this area.

30 In this regard, I note that in the matter of Wehbe the Chief Judge considered at para 64 the effect of various lot sizes in the controls. Then he said: 68 I am not satisfied by this ground for two reasons. First, the second aim of clause 11 is to "improve the residential amenity". That aim is to be achieved, according to the clause, by having allotments of the size specified for the locality. Again, the aim is descriptive of the result achieved by the clause fixing varying allotment sizes depending on the locality of the land to be subdivided and the type of allotment created by the subdivision. For land within zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside, the locality of relevance in this case, the planning policy embodied in the clause is that residential amenity will be improved by fixing a minimum allotment size of 700 square metres rather than the smaller allotment sizes considered to be appropriate for land in the other locality, being in zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale. 69 Viewing the second aim this way, granting consent to the proposed subdivision which creates allotments each of 514 square metres does not achieve the second aim of the clause which is to afford to land within zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltein Road, Ingleside, the improved residential amenity that comes from having a minimum allotment size of 700 square metres, rather than the smaller allotment sizes fixed for land in the other locality, being in zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale. 31 Similar lot size variations apply in the KPSO, wherein the minimum lot sizes generally apply: o Res 2( a); 790 sq m. o Res 2(b); 836 sq m. o Res 2(c); 929sqm o Res 2(h); 650 sqm. 32 Presumably these larger lot sizes than the proposed 584/600 sq m size are to maintain and improve the amenity of the existing, predominantly larger lots in this Residential 2(c) neighbourhood. I rely on Ms McCarry's opinion that the proposal does not achieve this.

33 An associated concern is whether general aim (b) is adequately met. It is most likely that the purpose of the subdivision is to facilitate a dwelling on the new lot. Accordingly, any future dwelling would be subject to a development standard for the minimum lot size for building of 929 sq m and the DCP 38 controls. I therefore consider it reasonable in the interests of orderly planning to assess whether an appropriate dwelling is possible, which is sympathetic and harmonious with adjoining development.

34 In the absence of specific details of any future dwelling, nevertheless this concern was examined. I am satisfied to accept Ms McCarry's opinion that future building would be significantly constrained because of: o the sloping topography of the land necessitating additional excavation, o the difficulty in achieving the prescribed side and rear setbacks, o inability to achieve satisfactory private open space areas with appropriate solar access and amenity, due to the location of the existing dwelling at No 31 Maxwell Ave. o likelihood of causing considerable shadowing of the excavated private open space area at No 35 Maxwell Ave. 35 In light of these constraints, I do not consider it appropriate to ignore the future development of this residential land. I am satisfied on the evidence before the Court, that the proposed lot sizes are inadequate to permit a reasonable dwelling, which satisfies the general aim 1(b).

36 By reference then to the 5 tests set out in Winten, the fourth test is whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. This test also involves examination of whether a development, which complies with the development standard is unreasonable or unnecessary. 37 In my assessment the SEPP 1 fails this test because it does not establish that the development would result in the maintenance and/or improvement of the amenity experienced by the predominantly larger lots, or allotments that comply with the minimum 929 sq m size, in the zone. Therefore, I do not consider compliance with the development standard is unnecessary or unreasonable in this case. A complying development would achieve the objectives.

38 Some other circumstances were presented regarding opportunities to achieve the same outcome by way of a SEPP 53 application. However no such application has been made and it would be subject to merit assessment. In any case however, this would be given little, if any weight based on the Chief Judges following comment in Wehbe: 60 Although the power under SEPP 1 is wide (see, for example, Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 203 affirmed (1990) 69 LGRA 201 at 203, 210), it needs to be exercised on the grounds in SEPP 1 relating to the development standard and the circumstances of the case. It does not allow a consent authority to dispense with compliance with a development standard merely in order to bring about conformity with some other planning control. SEPP 1 does not permit the consent authority to rank in order of importance planning controls applicable to the land and the proposed development, and give precedence to other planning controls over the development standard. 39 Another circumstance concerns the timing of the adjoining subdivisions. The 2-lot subdivision of No 20 Roland Ave was approved prior to any development standard for subdivisions and No 24 Roland Ave was approved under SEPP 53. Since those approvals, the 929 sq m minimum lot size development standard has been adopted and it is consistent with the development standard for erection of a dwelling in this zone. I give this determining weight as to the area required to generally achieve the amenity and environmental aims and objectives for this zone. I am unable to rely on Mr Grahams comments that: " It is obvious that the subdivision of Lots A and C have satisfied the objectives of the LEP and strict compliance with the width and area requirements would have prevented those subdivisions. Strict compliance with these standards prevents subdivision of the subject land. The minimum area standard in 1966 being a conversion from 10000 sq feet to square metres. The minimum width of 18m is a rounding of 60ft which converted is 18.29m. These standards are excessive and out of date. The adjacent approve subdivisions have achieved the objectives of the zone and do not comply with these standards." 40 In summary then, I do not consider the applicant has successfully made the SEPP 1 objection to this minimum subdivision lot size development standard and demonstrated that compliance is unnecessary or unreasonable. In coming to this conclusion, I rely on the evidence of Ms McCarry. Draft SEPP 1(Application of Development Standards) 2004 41 Insofaras the applicant did not address this draft SEPP, Ms McCarry undertook an assessment on this basis of the applicants proposal. She maintains her position that the smaller allotment will constrain future dwelling on the site and is unlikely to result in "exceptional design quality". As she does not consider there will be a better environmental outcome, she does not support the proposal on this basis. 42 However, taking into account that this Draft SEPP has not been made and there is no evidence of imminence and certainty, I give it little weight. The application otherwise fails to satisfy the SEPP 1 objection requirements. Precedent 43 This concern was identified by Ms McCarry and other neighbours. She says that if this application is approved there would be little justification for not supporting a future subdivision of similar allotments in the area and refers to Wehbe, which stated: "There will be little justification for not also upholding SEPP 1 objections to subdivision of land similar size and nature in the locality. These grounds are of a general nature and would be applicable to many sites in the locality...the ad hoc deviation from the development standard in this case on these ground would, therefore, create an adverse planning precedent for similar action to be taken in relation to other such land. This would affect the integrity of the planning policy .... this would not be an appropriate use of the dispensing power under SEPP 1." 44 It seems to me that this authority is appropriate in the subject case, considering the significant number of other surrounding larger lots which would have similar "subdivision potential". In these circumstances, I consider this should be given some weight and in my assessment, this is a further negative aspect of the proposal.

Court Orders. 1 The appeal is dismissed. 2 The SEPP 1 objection to the minimum subdivision lot size in cl 58B (3)(c) of the KPSO is disallowed. 3 Development consent for the 2-lot subdivision of No 22 Roland Avenue, Wahroonga is refused. 4 The exhibits may be returned except A, B and 3.

      R. Hussey
      Commissioner of the Court
      ljr

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