Hammond v Leichhardt Municipal Council

Planit Consulting v Leichhardt Council [2008] NSWLEC 29 CASES CITED: Segal & Anor v Waverley Council [2004] NSWLEC 363 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Maxwell James Maxwell Pty Ltd & Anor v North Sydney Municipal Council(NSWLEC,13 December 1991,unreported) Stein J

APPLICANT Ms M Taylor SOLICITOR Bartier Perry LEGAL REPRESENTATIVES:

RESPONDENT Ms J Walsh SOLICITOR Pikes lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10206 of 2010 Ronite Hammond v Leichhardt Municipal Council

JUDGMENT Summary 1 The applicant seeks approval of a development application for the subdivision of a waterfront site, at Lot 11 DP 1132009, known as No. 3 Tilba Ave, Balmain, into two long and narrow (4.7m wide) allotments and; the construction of a three storey dwelling with associated parking, landscaping and swimming pool on each lot. 2 Leichhardt Municipal Council has not determined this development application so this appeal pursuant to section 97 of the Environmental Planning and Assessment Act 1979 is lodged in respect of a deemed refusal of the application under section 82(1) of the Act. 3 By way of background, it was explained to me that the site is the middle lot in a three lot subdivision approved by the Court in Planit Consulting v Leichhardt Council [2008] NSWLEC 29. In this earlier proceeding the applicant agreed to the imposition of a condition requiring the amalgamation of lots 3 and 4 and the creation of three allotments extending from the street to the waterfront, each of width of about 7.5 metres. 4 The council does not support the further subdivision of lot 11 and the erection of two new dwellings on the new lots because such development would be inconsistent with the prevailing subdivision pattern of the area and an overdevelopment of the site. In council's assessment the development's cumulative breaches of the relevant planning controls supports a finding that the development is just not suitable for the site. It contends that the vacant site is unconstrained and has the potential to accommodate a single dwelling, which could comply with the statutory controls of the Leichhardt Local Environmental Plan 2000 (LEP 2000) and the Leichhardt Development Control Plan 2005 (DCP). Of particular concern to the Council is the precedent that would be set by an approval of this application for the built form on the adjoining vacant allotments. 5 The applicant does not accept that the site is unconstrained or that an approval of this application is an overdeveloped of the site. The applicant's evidence is that the proposed subdivision is consistent with the existing irregular subdivision pattern of the area and is acceptable under council's controls. It contends that the development's overall height, building width and massing is consistent with surrounding development and the built form is acceptable on the evidence. 6 After a view of the site, including from the water, and a consideration of the evidence and relevant matters under section 79C of the Act (including a consideration of the criteria in clause 30 of the LEP and relevant guidelines in Part A10.6.6 of the DCP - the Desired Future Character guidelines for the Birchgrove Distinctive Neighbourhood, I find that the subdivision is inconsistent with the prevailing subdivision pattern of the area and on a merit assessment cannot be approved. I accept the council's evidence that the proposed development in its current form is an overdevelopment of the site and therefore is not suitable development for the site. Because the applicant made clear at the commencement of the hearing that both subdivision and development consent were being sought for the proposed dwellings, I must now dismiss the appeal. 7 However, having said that, the applicant has asked me to give some indication in this judgment about the suitability of the proposed built form for this site. This would be a matter for a future development application. However, by way of comment only, I am of the opinion that a built form, giving the appearance of a single dwelling house, which may include an attached dual occupancy, or duplex could be acceptable development for the site provided it is built within the building location zone and the foreshore building line and provides view corridors at least through the side setbacks of the upper levels of any proposed development, with a some setback at side boundary at ground level. Any amended proposal should maintain the view corridors to the water and remove any built form (such as a hardstand car space) forward of the upper building location zone. It would also be desirable to provide additional landscaping at the Tilba Avenue frontage including at least one tree to soften the built form but of a species of tree to allow filtered water views from the public road. A contemporary style flat roof may also be an acceptable design element for any development of this site provided it allows for unobstructed water views from those properties opposite. 8 I set out the reasons for my decision below. The Proposal 9 I have read the detailed statement of facts and contentions filed by council on 23 April 2010 (exhibit 7) that describes the proposal and the contentions between the parties. 10 The determinative issue of this appeal is the proposed subdivision. Essentially, the subdivision of Lot 11 would divide the site equally along its length producing two lots, A and B, each of 289.8 m2 and each having a width of approximately 4.7m. 11 The built form includes a 3 level dwelling of masonry construction with a contemporary, flat roof design on each lot. The sidewalls to Levels 1 and 2 extend to each of the side boundaries for most of their length (with a 1.5m deep void approximately half way along the Level 2 floor plan only) and up to the front boundary. Level 3 is set in approximately 900mm from each side boundary and a minimum 4.65m from the front boundary (so providing a parking space forward of the building line). The proposed dwellings are constructed with their northwestern corners at Level 1 touching the Foreshore Building Line ('FBL'). The corner of Dwelling B is splayed so that this wall follows the FBL. 12 The elevation to Tilba Avenue is to be of two attached single storey parapet roofed garages to a height of approximately 3.3m above street level and with the parapet enclosing plant, which rises slightly above the parapet level. 13 It was explained on the view that the elevation to Iron Cove will be stepped and three storeys. A 2m high masonry wall is proposed between the two proposed lots and between each of the lots and the adjoining (currently) vacant land with this reducing to approximately 1m adjacent to the waterfront. 14 The internal detail of the development is described (para 1.5 exhibit 7) and it is sufficient to note that the stepped development has 3 levels, including a lift, 4 bedrooms, a home theatre, a swimming pool and pergola, a garage and parking space. The applicant agreed to modify the plans to address the solar access/ shadow between the two dwellings as detailed in exhibit 8 by way of a deferred commencement condition; and to remove the mechanical plant on the roof impacting on the view of its neighbour opposite the site. 15 Apart from those changes, the applicant relies on the amended plans filed with the Court and an approval of this application is dependant upon the upholding of its SEPP1 objection to compliance with the FSR development standard in clause 19(2) of the LEP, which is breached by this development. Objections to the application 16 The development application was lodged with Council on 23 December 2009 and notified and publicly exhibited from the 12 January 2010 until 2 February 2010. 17 Five letters of objection were received in response to the notification and some of those objectors who addressed the Court invited me to appreciate the impact of the proposal on their amenity from their properties. Generally, the concerns raised in the oral and written objections are: a Proposed subdivision is unacceptable due to the size and configuration of the proposed lots which are inconsistent with the subdivision pattern; b. Garages will be unattractive to streetscape - especially if this type of proposal is replicated in the other two lots leading to six close-spaced garages facing the street; c Loss of on street parking; d. Setbacks inadequate; e Overdevelopment - concerns over bulk/mass/long articulated walls and impact on the streetscape; f Development is inconsistent with heritage values of the locality; g. Impact on views from existing properties and from the public domain due to height and minimal setbacks; h Construction to foreshore building line inappropriate; i Building heights of adjoining developments queried; j Privacy impacts; k Proposed DA for one site only will lead to uncoordinated development; I Construction noise. 18 A letter was issued to the applicant on the 19 January 2010 advising of Council's preliminary assessment advice and requesting that additional information/clarification be provided. Additional information was lodged with Council on the 12 February 2010, providing amended plans and a structural engineering report. 19 An appeal against the deemed refusal of the application was filed with the Land and Environment Court on 23 March 2010. Site Description 20 The site is located on the western side of Tilba Avenue, Balmain and is about 579.6m2. It has a splayed frontage to Tilba Avenue of 11.255m and a slightly narrower frontage of 9.275m to Iron Cove. It has a depth of 64.07m (northern boundary) and 60.135m (southern boundary). The site width is 9.475m (such that each of the proposed two lots would have a width of 4.7 metres). 21 The site is currently vacant, as are the two lots to each side. There is no vegetation upon it. 22 The site falls from the road to the rear (Iron Cove) by approximately 9 m with a steep fall of approximately 4m immediately north west of the boundary to Tilba Avenue. Levels are around RL10.76 in the southeast corner (adjacent to Tilba Avenue) and RL1.82 along the waterfront boundary. The original site levels have been significantly modified as a result of the demolition of the previous dwelling and remediation works.

Adjoining properties and the locality 23 At the commencement of the hearing I had the opportunity to appreciate the evidence about the character of the site from the water and an extensive walk around the locality. I agree with the council's assessment that the immediate vicinity of the site is generally characterised by semi-detached and detached dwellings of mixed form and appearance. 24 At the view I observed that the site's northern boundary adjoins Lot 10 DP 1132009 which (as with Lot 12 DPI 132 to the south) is currently vacant and one of the three lots constituting the original site. Further north is a property known as No.1 A Tilba Avenue. A freestanding two-storey older-style dwelling exists on the site with a garage facing Tilba Avenue. 25 To the east the site fronts Tilba Avenue and a two-storey freestanding dwelling is located on the opposite side of Tilba Avenue. The owner of that property invited the Court to appreciate the impact of the proposal on his water view from the front balcony of his home. He said that the mechanical plant on the roof would impact his views of the water. He also expressed concern about the increase in traffic congestion and parking in Tilba Avenue as a result of the development. 26 Immediately to the south of the site is Lot 12 DP 132009 that is currently vacant. Further to the south of the site is a detached dwelling house at 7 Tilba Avenue. The owner of that property lodged a written objection to the application and addressed the Court about his objection to the development. 27 To the west, the property adjoins Iron Cove/Parramatta River, with waterside structures below MHWM Statutory Controls 28 The site is located within the Residential zone, pursuant to Leichhardt Local Environmental Plan 2000 (LEP) and the proposed development is permissible with consent. 29 The objectives of the LEP are: Clause 13(2) sets out the general objective for the built and natural environment and amenity being to encourage the design of buildings, structures and spaces, which are compatible with the character, form, and scale of the area to (as relevant): a protect and enhance the area's natural features, character and appearance, and b. protect, conserve and enhance the area's heritage, and c provide an environment meeting the principles of good urban design, and d. maintain amenity and contribute to a sense of place and community. Clause 17 provides (as relevant) objectives in relation to housing as follows: a to provide development standards to ensure that the density and landscaped areas of new housing are complementary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character, b. to provide landscaped areas that are suitable for substantial tree planting and of a size and location suitable for the use and enjoyment of residents, c to provide for a minimum residential allotment size in order to protect the area's diverse subdivision pattern and to ensure the orderly and economic use and development of residential land,

30 A maximum floor space ratio of 0.7:1 applies to the site under clause 19(2) of LEP 2000. The proposed development has a floor space ratio of 1.23:1 for Lot A and 1.11:1 for Lot B and therefore exceeds the standard in respect of both lots by a margin of 75.7% and 58.6% respectively. 31 The applicant has submitted an objection to compliance with clause 19(2) of the LEP under State Environmental Planning Policy No 1 (SEPP1) but council does not assess that the objection is well founded in the circumstances of this case. 32 A minimum landscaped area of 40% of site area is required under clause 19(3) of LEP 2000, of which 25% must be soft landscaped area (Clause 19(3)(b)). The proposal provides a landscaped area ratio of 43% for Lot A and a landscaped area of 43.9% for Lot B and complies with this standard. However, council is concerned that the development does not propose the planting of any trees at the street alignment or near the waterfront. 33 Clause 33 Foreshore Building Line: The site is subject to a foreshore building line. A building must not be erected and work must not be carried out on land between the foreshore building line and the mean high water mark (other than as specified in sub-clause (3) including pools, boatsheds and the like subject to the work not detracting from the scenic qualities of the locality). The proposed development complies with this control. Heritage Conservation 34 The site is located within a Heritage Conservation Area, and it is in the vicinity of heritage items at Nos. 18 and 8 White Street under Leichhardt Local Environmental Plan 2000. The site is therefore subject to the provisions of Clause 16(7) - 'Development in the vicinity of Heritage Items' and 16(8) - 'Development in Conservation Areas' of the Leichhardt Local Environmental Plan 2000. 35 Clause 15 of LEP 2000 provides objectives in relation to heritage conservation, as follows: The objectives of the Plan in relation to heritage conservation are as follows: a) to protect, conserve and enhance the cultural heritage and the evidence of cultural heritage, including places, buildings, works, relics, townscapes, landscapes, trees, potential archaeological sites and conservation areas, and provide measures for their conservation, b) to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt, including the natural, scenic and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, surface rock, remnant bushland, ridgelines and skylines, c) to prevent undesirable incremental change, including demolition, which reduces the heritage significance of places, conservation areas or heritage items, d) to allow compatible and viable adaptation and re-use of the fabric of heritage significance, e) to ensure the protection of relics and places of Aboriginal cultural significance in liaison with the Aboriginal community.' 36 Clause 16(7) of LEP 2000 makes the following provision for development in the vicinity of a heritage item: 'Consent must not be granted for development on land in the vicinity of a heritage item, unless the consent authority has made an assessment of the effect the carrying out of that development will have on the heritage significance of the heritage item and its setting as well as on any significant views to and from the heritage item.' 37 Clause 16(8) of LEP 2000 makes the following provision for development in Conservation Areas: 'Consent must not be granted for the demolition, reconstruction, adaptation or erection of a building, the carrying out of a work, or the subdivision of land, within a conservation area unless the consent authority has made an assessment of the extent to which the carrying out of the development would affect the heritage significance of the conservation area, with particular regard to: a) the heritage significance of any building, work, relic, tree or place, archaeological site or potential archaeological site or aboriginal site that would be affected, and the contribution it makes to the conservation area, and b) the compatibility of the proposed development with the conservation area, including the size, form, scale, orientation, siting, materials, landscaping and details of the proposed development. 38 The following State Environmental and Regional Planning Policies are relevant to the proposal: * State Environmental Planning Policy No. l - Development Standards. * State Environmental Planning Policy (BASIX). * State Environmental Planning Policy No.55 - Remediation of Land; * Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. Development Control Plan 39 The site is subject to the provisions of Leichhardt development Control Plan 2000 under which it is located within the Balmain Suburb and Birchgrove Distinctive Neighbourhood. 40 The Desired Future Character guidelines for the Birchgrove Distinctive Neighbourhood provide, as relevant: * Development should follow the topography of the area and maintain the single storey scale on the mid slopes and mixed 1 and 2-storey scale at the top and bottom slopes. * Conserve and promote the consistent rhythm within the streetscape created by regular lot sizes, subdivision pattern and the predominance of detached and semi detached houses with a prevalence of hipped, pitched and gabled roof forms. Preserve the established setbacks for each street. * Preserve and where practicable, enhance public and private views over Snails Bay and Parramatta River. Buildings on the waterfront should follow the slope and help preserve view lines by stepping down with the contours. * Promote a balance of landscape to built form in the view of the neighbourhood when viewed from the water. * Conserve the single and double storey, freestanding form, style and materials characteristic to each street. * Conserve and complement the established streetscape with regard to setbacks, street trees and general lack of driveway crossings. * A maximum building wall height of 6m applies to the neighbourhood. * New / expanded driveways crossings shall be discouraged. Driveway crossings will only be supported where they are servicing single width garages and they do not involve excavation of sandstone features. * New development shall maintain the use of hipped, pitched and gabled roof forms and designs shall be complementary to the existing unadorned built form. Flat roofs may be appropriate the style of architecture is contemporary and view lines may be affected. * Building materials used shall be consistent with the existing character of the streetscape, including rendered and painted surfaces and roof materials such as corrugated iron as well as timber windows. * Development visible from the water is to be designed to preserve the conservation values of the area. When viewed from the water a balance between built form and landscape is to be achieved/maintained through side setbacks and landscaping. Where development is visible from the water details of that view are to be submitted with the development application. * Conserve the single storey and double storey, freestanding form, style and materials characteristic to each street. * Where a consistent pattern of architectural style and form exists, preserve this consistency on each street. * Maintain the diverse character of the area by ensuring new development is complementary in terms of its architectural style, built form and materials. * Fences should be low open pickets and with metal timber or stone posts. * Conserve and complement the established streetscape with regard to setbacks, street trees and general lack of driveway crossings. 41 The following controls apply under Part B1.2 of DCP 2000: * Rear Building Location Zone: Development is required to be located within a line drawn between the rear setbacks of adjoining dwellings. First & second floors should not occupy the whole of the ground floor Building Location Zone. 42 The proposal breaches this line by up to 5 metres at ground, first and second floors. * Side setback: Development is required to sit within a plane measured from a height of 2.4 metres of ground level along the side boundaries, then projected at 45 degrees over the site. 43 The proposal breaches this requirement. 44 The following controls apply under Part B3.1 of DCP 2000: * Solar Access: Development is required to provide solar access for a minimum of 3 hours solar access between 9am and 3pm at the winter solstice for all new dwellings. 45 The council contends that the original proposal fails to meet this control in respect of the northwest facing living room of Dwelling B. The adjoining lots are vacant and hence are not subject to assessment, however the proposal does create significant overshadowing on these lots by reason of its height, flat roof form, non-compliant side setbacks and extension of built form beyond the building location zone. Other provisions of DCP 2000 46 The following provisions of DCP 2000 are relevant: * Part A7.0: Heritage Conservation; * Part 8.0: Parking Standards and Controls; * Part A l 0.6.6 - Birchgrove Distinctive Neighbourhood. * Part B1.1: Demolition, site layout, subdivision and design; * Part B1.2: Building Form, envelope and siting; * Part B1.3: Car parking; * Part B1.4: Site drainage and stormwater control; * Part B1.5: Elevation and materials; * Part B1.6: Front Gardens and Dwelling Entries; * Part B1.7: Fences; * Part B1.8: Site Facilities; * Part B2.1: Building construction, thermal mass and materials; * Part B2.2: Solar control - external window shading; * Part B2.4: Natural ventilation; * Part B2.8: Landscaping; * Part B3.1: Solar access - residential amenity and energy efficiency; * Part B3.2: Private Open Space; * Part B3.3: Visual Privacy; * Part B3.5: Acoustic privacy. * B4.4 Foreshore development. 47 The following development control plans also apply to the proposed development: * Sydney Harbour Foreshores and Waterways Area Development Control Plan. * Development Control Plan No. 36 (Notifications). * Development Control Plan No. 38 (Waste - Reuse, Reduce Recycle). * Development Control Plan No.42 (Contaminated Land Management). Contention 6 48 The council raises 9 contentions in respect of this application. However, contention 6 is determinative of the appeal in my assessment. It deals with the appropriateness of the proposed subdivision and states: "The proposed subdivision is contrary to Clause 30 of LEP 2000 and Part B1.1 DCP 2000 for the following reasons. Particulars a The proposed subdivision provides for two long, narrow lots each with a width of approximately 4.7m and a lot of that width is not consistent with the existing development. b The prevailing pattern of subdivision includes lots generally of around twice this width or more. Of the adjoining lots, 1 A Tilba Avenue to the north has a width of approximately 15 metres while 7 Tilba Avenue occupies a lot of approximately 20 metres width. c The proposed lots do not provide an appropriate setting for development in terms of site areas, dimensions and amenity. Due to the narrow width of the lots and their modest area relative to common expectations of purchasers of valuable waterfront properties as to floor area to accommodate their needs and amenity, the proposed subdivision will promote development that is of excessive scale and which will not protect the urban form, scale and density of the locality. d The development application has not shown how two dwellings can be accommodated on the two lots, each with appropriate amenity: * The dwelling on Lot B will have less than the 3 hours of sunlight required under Part B3.1 of DCP 2000, and this is this unacceptable outcome for a northwest facing block that is otherwise free of overshadowing by adjoining development. * Both dwellings are reliant on skylights/lightwells for daylight access to main living areas, each of these features being potentially subject to daylight obstruction from developments that will occur on each of the two vacant lots to each side. * The applicant's shadow diagrams appear to understate the extent of shadow impact on the private open space of the proposed dwellings, such that these are either non compliant or only just compliant (depending on the correct position of true north) with the solar access standard in Part B3.1. This is a poor outcome for open space with a north-west aspect, with no shadow impact from adjoining development, and arises due the narrow width of the proposed lots and the height of fencing proposed." 49 The town planning experts agree that the proposed lots comply with the minimum 200m2 subdivision area standard in clause 19(4) of the LEP. However, the experts have different opinions about whether the proposed subdivision into two lots satisfies the provisions of clause 30 of the LEP and Part B1.1 of the DCP. 50 Clause 30 states: "Subdivision of Land Before consenting to a subdivision of land, the consent authority must consider whether the subdivision will: (a) provide an appropriate setting for development in terms of site areas, (b) protect the urban form, scale and density of the locality." Applicant's evidence about the subdivision 51 Mr Turrisi is of the opinion the proposed subdivision into two long narrow lots is consistent with the statement within the existing character statement for Birchgrove "…that many waterfront residential developments follow the slope of the land down to the water and the subdivision patterns are long and narrow blocks". In his expert assessment the proposed subdivision is not uncharacteristic of the existing waterfront development where lots are more varied in width and size. He invited the Court to appreciate his expert opinion at the view particularly from the water when he pointed out the irregular but often long and narrow lots adjoining the site and within the relevant area. 52 In his expert opinion clause 30 of the LEP "has greater weight in areas which are more traditional in grid pattern, where street blocks are rectangular and the built form uniform to reflect a specific subdivision pattern."(P19 joint report). For example areas in Leichhardt and Annandale and along the ridgeline of the Balmain Peninsular. In his assessment, the urban development in Balmain peninsula reflects the topography of the area and reflects a road layout that is less structured. 53 Because of his opinion about the applicability of clause 30 to this locality he suggests that the Court should place greater emphasis on the built form issues of the proposal rather than the two dwellings on the subdivided land. 54 In his written evidence, Mr Turrisi states " I am of the view that provided the built form is deemed to be appropriate on the land, then whether the property subsequently contains two dwellings is on my submission irrelevant providing that the proposal complies with the minimum subdivision standard" (p19 joint report). Despite his support for the proposed built form Mr Turrisi agreed with the proposition that it was appropriate to confine the built form within the building location zones and foreshore building line. He agreed that the proposed development while complying with the foreshore building line does not sit within the building location zones under council's controls. 55 In asking the Court to give more weight to the built form rather than the proposed two dwellings in a consideration of the matters raised by clause 30, Mr Turrisi accepted that a subdivision of the site would allow for the independent development of each lot in the future. He accepted that two different owners might obtain consent to build different built forms on the lots or there could be a situation where one of the dwellings in this application if approved might not be erected on the site. 56 His evidence is that the issues of solar access to the dwellings have been addressed with a minor amendment and the proposal is compliant .The movement of the light well to allow direct light into the living area overcomes in his mind any issue with the internal amenity of the proposal. 57 The lack of side access from the street to the water is in Mr Turrisi expert opinion no issue because the water provides alter direct access to the site if necessary. The Council's evidence about the subdivision 58 Ms Laidlaw describes the applicant's reliance on the DCP's reference to long and narrow lots as being characteristic of the area as "meaningless", because, in her assessment, the lots in the locality of this development are "…around twice the width of proposed lots A and B "(p20 joint report). 59 According to council's evidence, a site with a width of 4.7m "…is the minimum required for practical living accommodation in this type of environment ". Ms Laidlaw was of the opinion clause 30 in the LEP needs to be read with the DCP provision which states; "subject to the minimum lot size of 200m2, future lot subdivision should be consistent with the prevailing subdivision pattern and shape of the surrounding development." This proposal, she suggests, offends that key performance guideline because the lots as proposed do not "conserve and promote the consistent rhythm within the streetscape created by regular lot sizes, subdivision pattern and the predominance of detached and semi detached houses or conserve the …freestanding form…characteristic to each street." In her assessment the controls in the DCP in Part A10.6.6 and Part B1.1 are not achieved by this subdivision. As she states in the joint report Clause A10.6.6 requires "development visible from the water to be designed to preserve the conservation values of the area …balance between built form and landscape is to be achieved /maintained through side setbacks and landscaping…." The narrow width of the lots in this application she says dictates a terrace style development, built side to side boundary, and in her opinion that is inconsistent with the Desired Future Character. She referred to the provisions in Part B1.1 Design Element 1 -Demolition, Site Layout, Subdivision and Design which are based on the rationale that infill development needs to meet the desired future character of the area and is to be of "high quality design" and "…compatible with the apparent subdivision pattern". In her oral evidence Ms Laidlaw was clear that in her assessment this is not "high quality design" or "development compatible with the apparent subdivision pattern". In her opinion this vacant site has the development potential to comply with the objectives of the suite of controls in the LEP and the DCP. She expressed the view that appropriate development could be a single dwelling or dual occupancy on this site and did concede that the setback control could be varied to accommodate the constraints of the site but not to the extent of allowing development built to the boundary. 60 Ms Laidlaw told the Court that provided view corridors to the water were maintained by some side boundary setback; a less bulky development within the building location zones may achieve the objectives of the controls and result in a development that is consistent with the desired future character of the area. 61 However in her assessment the criteria in clause 30 are not achieved by this proposal because the development does not provide an appropriate setting for development in terms of site area or dimensions - or amenity. Nor does the subdivision, in her opinion, protect the urban form, scale and density of the locality. She says that the subdivision would limit the design to terrace development built to the boundary and dictate a greater ratio of building bulk to site area relative to adjoining development. 62 Ms Laidlaw is also critical of the internal amenity of the proposal which she says is prejudiced by the narrow lot width. While accepting the amendment to improve the solar access, she submits that the fact that a north west facing dwelling (with vacant lots to each side) having difficulty obtaining appropriate solar access is indicative of the "self imposed" constraint on amenity, which is caused by the proposed subdivision. 63 The reliance on skylights for daylight and to main living rooms because of the possible impacts of adjoining development on internal amenity to this site is also indicative of the unsuitability of the subdivision as proposed. 64 The council is concerned about the precedent effect in approving this application particularly because of the evidence that the development of this site as proposed would impact the opportunity for development of the adjoining vacant sites and the public view from the waterway. Council contends that the development is contrary to the provisions of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (REP) and the Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (Sydney Harbour DCP) for the reasons detailed in contention 7 as particularised in the letter from council's solicitor to the applicant dated 27 May 2010. Findings 65 I accept the evidence of Ms Laidlaw that the proposed subdivision while numerically compliant in area does not provide an appropriate setting for development in terms of site area, or protect the urban form, scale and density of the locality as is required by clause 30 of the LEP. Nor does this subdivision meet the Desired Future Character guidelines for the Birchgrove Distinctive Neighbourhood to "conserve and promote the consistent rhythm within the streetscape created by regular lot sizes, subdivision pattern." 66 I do not accept that clause 30 of the LEP should be given less weight in a consideration of this application because of the site's location, as Mr Turrisi suggests. Nor do I think that it is appropriate, as was again suggested by Mr Turrisi, to place greater emphasis on the acceptability of the built form in a consideration of the development provided it complies with the site area requirement. In adopting that approach, the applicant ignores the fact that a subdivision of this land creates two independent development sites. A focus on the built form proposed in this application becomes academic if it is never built, however, the subdivision of land once created remains. Based on the evidence in this case, I accept that clause 30 of the LEP which applies to the site is a relevant consideration under section 79C(1)(a)(iii) and requires that I not only consider whether the proposed lots "provide an appropriate setting for development in terms of site areas " but also whether they "protect the urban from, scale and density of the locality." 67 To effectively ignore or give little weight to a consideration of the matters in clause 30(a) and (b) of the LEP would in my opinion compromise the ability to assess whether the objective in relation to housing in clause 17 (c) " to provide for a minimum residential allotment size in order to protect the area's diverse subdivision pattern and to ensure the orderly and economic use and development of residential land" is achieved with this development. 68 Even if I were to accept Mr Turrisi's evidence that the built form comprising two dwellings (subject to amendments as discussed to reduce the bulk and scale and increase landscaping) could result in an acceptable built form for the site after a merit assessment under section 79C of the Act, it does not follow that the proposed subdivision is appropriate (or even necessary) from an urban design perspective. 69 Based on the evidence, I accept Ms Laidlaw's assessment that the subdivision does not protect the urban form, scale and density of the locality because it creates two long narrow lots which are not consistent with the prevailing subdivision pattern of the locality. I accept that this is a relevant consideration under clause 30 of the LEP in my assessment of the application. 70 Nor does the development achieve an appropriate setting for development in terms of site area because the long narrow lots encourage development that, according to Ms Laidlaw, compromises the internal amenity of the development and the future development potential of adjoining lots. I do not accept Mr Turrisi's evidence that clause 30 has greater weight in areas where there are more traditional grid patterns of subdivision. The subdivision of this prominent waterfront site must be assessed having regard to the considerations raised by clause 30 of the LEP. The clause invites a consideration of the subdivision of the site in its context whether that is traditional gird pattern or waterfront site. Whatever, the prevailing pattern the clause requires a consideration of that prevailing pattern with a view to " protect[ing] the urban from, scale and density of the locality". 71 An approval of the subdivision must be assessed having regard to the independent development potential of each lot that would be created. I accept that the development potential of an allotment with a width of 4.7m and area of 289m2 (even in Balmain) is based on the evidence, constrained. Based on the evidence a single dwelling or integrated design on the existing site provides a better opportunity for orderly and economic use and development of this residential land within a conservation area. It was apparent at the view that the surrounding lots are twice the width and area of the proposed lots. I accept the evidence of the council, confirmed by the view that approval of the proposed subdivision would result in two lots, which would be at odds with the prevailing subdivision pattern of the area. I agree with Ms Laidlaw that Clause 30 of the LEP should be read with Part B1.1 of the DCP, which provides "subject to the minimum lot sizes of 200m2, future lot subdivision should be consistent with the prevailing subdivision pattern and shape of the surrounding development". I accept the evidence of the council, confirmed at the view, that the prevailing subdivision pattern along the western side of Tilba Avenue and Phoebe Street is one with allotments of almost double the width of the proposed allotments; and the proposal fails to accord with these controls. 72 Mr Turrisi conceded in his oral evidence if the land was subdivided as proposed the opportunity to redevelop each new lot independently by separate owners with different designers was a fact. His evidence is that an integrated development over two separate lots as proposed is appropriate development for the site however; based on the evidence subdivision of the site is not necessary to achieve that outcome. 73 The opportunity for independent development of each lot in the future (if this subdivision was approved) is sufficient reason in my opinion to refuse this application. The creation of two 4.7m wide long narrow lots on this prominent waterfront site would not achieve the land use objectives of the LEP in clause 7(3) or the objective for Housing in Part 4 clause 17 (c) "to provide a minimum residential allotment size in order to protect the area's diverse subdivision pattern and to ensure the orderly and economic use and development of residential" or provide for urban design which meets the Desired Future Character in Part A 10.6.3:"promote the consistent rhythm within the streetscape created by regular lots" The fact is that this lot is in the middle lot of three uniform allotments in a foreshore locality where the prevailing subdivision is lots double the width of the proposal The approval of this application for subdivision would be inconsistent with that prevailing rhythm within the streetscape and thereby, based on the evidence would be contrary to the Desired Future Character in Part A 10.6.3 of the DCP It would result in a density that is not consistent with surrounding development. 74 Council has raised the issue of precedent. The Court of appeal decision in Segal & Anor v Waverley Council [2004] NSWLEC 363 confirmed each merit appeal must be decided on its particular facts and this case is clearly distinguishable on its facts. However, because this site is on the foreshore and prominent I understand the submission of the council that the proposed subdivision of this vacant and unconstrained site has the opportunity to set an undesirable precedent for the adjoining vacant lots. Based on the reasoning of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 if faced with an application for a proposed development which may not objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. However, in this appeal the application is objectionable in itself and I do not need to rely on the precedent argument once described by Stein J as "…an argument of last resort" in Maxwell James Maxwell Pty Ltd & Anor v North Sydney Municipal Council (NSWLEC, 13 December 1991, unreported) Stein J. To be clear, the precedent issue is not determinative of this appeal. 75 Of particular relevance in the present case are the following matters referred to in s 79C(1): "(a) the provisions of: (i) any environmental planning instrument, and … (iii) any development control plan … (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development... (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.

76 Having regard to the above, I am of the opinion that the evidence supports a finding that this development is likely to have an unacceptable impact on both the natural and built environments. Based on the evidence, it is my opinion that the site is not suitable for the proposed subdivision or the proposed built form under section 79C(b) and (c) of the Act. 77 I accept Ms Laidlaw's evidence that the impacts of the development on the neighbouring vacant lots (including shadow and nil setback) is likely to result in the owners of those lots similarly seeking terrace style development beyond the building location zones with nil to negligible side setbacks and such development when viewed from the water would detract from the quality of the views from the water. Independent of any precedent effect approval of this application alone in this streetscape would at odds with the density of surrounding development when viewed from the water. The subdivision is not sympathetic to or respective of the streetscape. 78 Council has raised (in contention 7) the issue that the development is contrary to the provisions of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (REP) and Sydney Harbour Foreshore s and Waterways Area Development Control Plan (Sydney Harbour DCP). In particular council contends that as part of the foreshore the site is an important public asset that should be recognised, protected, enhanced and maintained (clause 2(1)(a) of the REP) including its visual and scenic quality (clause 25of the REP). 79 Council's evidence is that the proposed development, by reason of height, bulk and scale, and the terrace form will detract from the quality of the views from the waterway and be inconsistent with the character of the foreshore as viewed from the water (clause 26 and 25 of the REP). Council submits that if this form of development is replicated on the adjacent sites the cumulative effect and impact of the development on the views has not been minimised as is required by clause 26(a) of the REP. 80 The provisions of the REP and the Sydney Harbour DCP are relevant considerations under section 79C (a)(i) and (iii) and (c) "the suitability of the site for the development" and (e) "the public interest". Based on the evidence, including the view taken from the water, I accept the council's evidence that the proposed subdivision would be visible from the public waterway and that the proposed development would detract from the quality of the views from the waterway and be inconsistent with the character of the foreshore as viewed from the water (clause 26 and 25 of the REP). The evidence supports a finding that the development would present as an extended built form on a long narrow lot, built side boundary to side boundary in a manner inconsistent with the detached dwellings adjacent, and at odds with the line of development that allows view corridors through side boundary setbacks. The prevailing subdivision and rhythm when viewed from the water is lots double the size of those proposed by this application. 81 The council's expectation that a single dwelling or some form of dwellings or duplex that has the presentation of a single dwelling may be accommodated on the site and comply with the objectives of the statutory controls of the LEP and also meet the suite of controls in the DCP is not unreasonable. The fact is, based on the evidence, the proposed built form does not achieve that outcome it is an overdevelopment of the site in terms of its bulk and scale as evidenced by its exceedence of the FSR control, massing outside the rear building location zone and nil side boundary setbacks. The subdivision into 2 lots of only 4.7m in width would not allow dwellings with side setbacks consistent with other lots in the locality especially when viewed from the water. Because of my finding in respect of the subdivision it is not necessary to deal with each contention raised by this application. My refusal of the subdivision, for the above reasons is determinative of the appeal. 82 Accordingly, the Court makes the following Orders: 1. the appeal is dismissed; 2. development application No. D/2009/555 for consent for the subdivision of Lot 11 DP 1132009, known as No. 3 Tilba Avenue, Balmain into two allotments and for the approval of a three storey dwelling with associated parking, landscaping and swimming pool on each of the new lot is refused; 3. the exhibits are returned except the plans Exhibit A.

      Susan Dixon
      Commissioner of the Court

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