Kenneth Roberts v Blue Mountains City Council

Land and Environment Court (NSW)|1986-06-02

CITATION : Kenneth Roberts v Blue Mountains City Council [2005] NSWLEC 699

APPLICANT: PARTIES : Kenneth Roberts

Subdivision :- Planning and the new BMLEP KEY ISSUES: Bush fire.

Blackmore Design Group Pty Limited v North Sydney Council [2001] NSWLEC 279; Mathers v North Sydney Council [2000] NSWLEC 84; CASES CITED: Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185; Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported):

DATES OF HEARING: 12/01/2005; 17/11/2005. Conditions filed 05/12/2005

APPLICANT: Mr I Hemmings, barrister, instructed byMr B Coode, solicitor SOLICITORS: Coode & Corry of Penrith LEGAL REPRESENTATIVES: RESPONDENT: Mr T Cork, solicitor SOLICITORS: McPhee Kelshaw of Springwood

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10627 of 2004 - Kenneth Roberts v Blue Mountains City Council

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Blue Mountains City Council (the council) to refuse a development application to subdivide into two allotments, land at Lot 41, DP 4695, being No 34 Emu Road, Glenbrook. 2 I visited the land in company with the parties on the morning of the hearing, which was held at Penrith Court House. 3 I have concluded that the application should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979 as the applicant has adequately dealt the principal-contested issues of planning and bushfire. The land 4 The land, which has an area of some 2,023.6m2, is situated on the eastern side of Emu Road, around 50m north of its intersection with Hodgson Road. The land is rectangular in plan with a frontage to Emu Road of 20.115m and a depth of 100.635m. It has a gentle to moderate slope down of about 11m over its length to the rear eastern boundary with 'Darks Common' a public reserve. 5 Existing vegetation is contained in formal and informal gardens with large areas of turf and is a mix of native and introduced species. There is a 20m-high Mountain Blue Gum, (Eucalyptus deanei) growing on the land near the proposed common boundary between the two proposed lots. 6 Erected on the land is an existing dwelling and freestanding garage. 7 Dwellings are located to the north, south and west of the land within a bushland setting. The land is a Category 1 bushfire prone land buffer. Darks Common to the east, is a potential bush fire threat, however, there is about a 10m-wide fuel-reduced section of the common abutting the eastern boundary of the land that extends behind neighbouring properties. The Rural Fire Service representative suggests that an asset protection zone, (APZ) of 40m be provided on the eastern side of the land, perhaps including a 10m strip within Darks Common. Relevant planning controls Blue Mountains Local Environmental Plan 2005, (BMLEP) 8 The BMLEP was gazetted 7 October 2005, and the land is within the Living-Conservation zone and the proposed subdivision is permissible with consent. 9 Under cl 23 of the BMLEP the objectives of the Living-Conservation zone are: (a) To retain and enhance the character of residential areas that is formed by larger allotments and single dwelling houses within a prominent traditional garden setting. (b) To enhance the landscape character and setting along roads of heritage significance where the road forms a visually significant entrance to a village or a linkage/pathway between major visitor destinations. (c) To ensure development, including development within adjoining road reserves, retains the prominence of landscape elements and traditional garden settings. (d) To ensure that established gardens are retained or landscape settings are re-established as part of any development of land; including development involving major alterations and additions. (e) …

10 Under cl 6(4) of the BMLEP the savings and transitional provisions apply: 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. 11 Under cl 90 - Lot layout of the BMLEP (1) A lot created in a subdivision of land within a zone described in the following Table is to have a minimum area and a minimum width as specified for that zone in the following Table: Minimum Minimum Zone area, except area of a Minimum hatchet hatchet width shaped lot shaped lot Village - Tourist 720m2 1,100m2 18.5m Village - Housing 720m2 1,100m2 18.5m Living - General 720m2 1,100m2 18.5m Living - 1,200m2 1,200m2 22m Conservation Living - Bushland 1,200m2 1,200m2 22m Conservation Employment- 900m2 1,100m2 18.5m Enterprise

(2) In calculating the area of a lot for the purposes of this clause, the area of any part of that lot that is within the Environmental Protection - Private zone is to be excluded. (3) Where a lot created is within more than one of the zones specified in subclause (1), the lot is to have a minimum area and a minimum width specified for that zone which comprises the largest proportion of that lot. (4) The width of the lot is to be measured at the minimum front building setback, as specified in the "building setback" provision applying to that land in Schedule 1, 2 or 3. (5) The consent authority shall not permit the creation of more than 3 lots served by a single driveway, access strip or handle connected to a public road. (6) The minimum width for an access strip or handle is 4.5 metres. (7) In calculating the minimum area of a hatchet shaped lot the area of the access strip or handle is to be excluded. (8) Subdivision is to result in the retention, where possible, of existing vegetation and the layout and design of the new lots, including access ways, are to be consistent with the character of the locality. (9) 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) is capable of being accessed by a driveway that is connected to a public road, and (e) is not development excluded land. (10) The subdivision of land within the Living-Conservation zone is to: (a) retain an appropriate setting and visual context for existing buildings that allows for any existing formal garden settings that are integral to the character of the building to be retained within the lot on which the building is located, and (b) identify building envelopes for each lot that will maximise the retention of existing formal gardens and existing mature vegetation on the site. 12 Clause 91 - Provision of services for subdivision, applies: Consent shall not be granted to the subdivision of land to create additional lots unless: (a) each of the lots to be created that will require the disposal of wastewater is to be serviced by reticulated sewerage and potable water systems, and (b) the Sydney Water Corporation has previously provided certification to the Council that the sewage treatment plant and the sewerage and potable water reticulation systems serving the locality concerned have the capacity to accommodate the additional development or can be upgraded to accommodate the additional capacity as part of the development. 13 Clause 92 - Subdivision related to specific land uses applies: (1) The consent authority may consent to the subdivision of land to create lots that do not comply with clause 90 if the subdivision: (a) is for cluster housing, or (b) is for integrated housing within the Village-Housing zone, or (c) relates to detached dual occupancy development for which consent has been granted and provides for each dwelling to be on a separate lot, where the lot size prior to subdivision is not less than 1,100 square metres, excluding any part of that lot that is within the Environmental Protection - Private zone and the area of any access handle for a hatchet shaped lot, or (d) relates to attached dual occupancy development for which consent has been granted and provides for each dwelling to be on a separate lot, where the lot size prior to subdivision is not less than 900 square metres, excluding any part of that lot that is within the Environmental Protection - Private zone and the area of any access handle for a hatchet shaped lot, or (e) … (f) relates to accessible housing for which consent has been granted and provides for each dwelling to be on a separate lot, or (g) …

14 Blue Mountains Better Living Development Control Plan, (Subdivision DCP) 15 Clauses F2.2, F2.3, F2.4, F2.5, F2.6, F2.7, F2.8, F2.9, F2.10, F2.11, F2.12 of the Subdivision DCP are relevant. Blue Mountains Local Environmental Plan No. 4, (LEP4) 16 Under the provisions of the LEP4 the land is zoned Residential 2(al) and the proposed subdivision is permissible with consent. 17 Clause 33(2)(c)(i) of LEP4 requires a minimum non-hatchet-shaped (street-frontage) lot size of 700m2, and cl 33(2)(c)(ii) requires a minimum hatchet-shaped lot size of 1,100m2, both lots under cl 33(2)(c)(iv) are required to have a minimum frontage of not less than 18.5m. Under cl 33(2)(c)(iii) the ratio of depth to frontage is required to be satisfactory to the council or the Court on appeal. No ratio of depth to frontage is indicated in LEP4 however, Mr Langevad for the council, stated that the "fairly standard depth to frontage ratio for detached residential development [is] 2:1." [Note: Exhibit 1, p 62] He carried out a survey of the area and found that on average the ratio for existing lots is between 2.15:1 and 2.2:1. The latter figure being for subdivisions under LEP4 since 1982. Car Parking Development Control Plan No. 29 - Car Parking, (Car parking DCP) 18 The Car Parking DCP is relevant to car parking design, and construction. Sydney Regional Environmental Plan No. 20 - Hawkesbury - Nepean River, (SREP20) 19 SREP20 is relevant. The proposal and its history 20 Development application No 504/0001 was lodged with the respondent council on 2 January 2004, to subdivide the land into two allotments. The application was lodged after the applicant had consulted with the council and had been told by letter dated 27 November 2003 that the application was unlikely to be supported by the council officers for reason of: · inadequacy of proposed vehicular access arrangements for the rear allotment and, in view of minimum lot size requirements, that an appropriate battle-axe subdivision could not be achieved, and · non-compliance with lot frontage requirements prescribed by LEP4, and · non-compliance with relevant provisions of draft LEP2002 [now BMLEP] and that significant weight would be given to the draft plan in view of its certainty and imminence. 21 The proposal is shown on a plan prepared by Stephen Conroy (Surveyors) Pty Limited in Exhibit C. The subdivision would provide for a 15.615m wide street frontage lot of 702.6m2, and a 20.115m wide, 1,321m2 battleaxe lot, of 1,119.098m2 not including the 4.l5m wide access handle proposed along the southern boundary near the road. 22 The existing improvements are to be demolished. The Mountain Blue Gum is to be retained but might need to be removed if further development of the land occurred. 23 The proposal complies with the area standard of LEP4 but not the width of the proposed street-frontage lot, and the applicant has provided an objection under State Environmental Planning Policy No 1 - Development Standards. The non-hatchet-shaped front lot has a width at the street alignment of 15.615m and thus would be deficient in width of 2.885m when compared to the required 18.5m width under LEP4. 24 Although not shown on the plan, the applicant, during the course of the hearing, explained that all vehicular access and egress to both lots would only be along the access handle driveway. Condition 7 is proposed requiring the applicant to register a s 88B instrument indicating that vehicle access directly to and onto proposed Lot 411 via its frontage to Emu Road, is denied. This is significant, as it would allow a similar extent of landscaping as would be possible on lots of greater complying width under LEP4 and with landscaping similar in extent to those battle-axe blocks nearby. Notification 25 The application was originally notified to nearby owners and occupants and the council received three (3) individual letters of objection. Concerns related to the increased intensity of development in the area and loss of trees if the subdivided land were later developed with dwellings. 26 Under the Environmental Planning and Assessment Act 1979 the applicant requested a s 82A review of the original decision under delegated authority to refuse the application. 27 The s 82A review application was notified to all residents of properties that abut the land and to those who made submissions to the original proposal and one submission was received during the notification period of 8 September 2004 and 22 September 2004. Concerns were held in respect of: · lot size being too narrow with the dwelling impinging on the access handle; · subsequent development would be out of character with the surrounding area, expressed in words that "…if we keep changing the lot sizes and continue subdividing, the entire blue mountains' character will change to be the same as the city." · adverse impact on standard of living; · reduction in current levels of privacy and amenity; · are there limitations on subdivision arising out of the need to adequately service land; · insufficient footpaths and increase in traffic; and · building envelopes will lead to removal of some large trees. The council's decision 28 By notice dated 26 March 2004, the council refused the application for the following reasons: a) The proposed development does not comply with the provisions of Draft Local Environmental Plan 2002, in terms of minimum lot size, minimum frontage and visual context. b) The proposed development does not comply with the provisions of Local Environmental Plan 4, in terms of minimum frontage. c) The proposed development does not comply with all the provisions of Development Control Plan No. 27, Part B - Technical Design. d) The proposed development is not consistent with the average allotment size along the relevant section of Emu Road. e) The proposed subdivision does not reflect good streetscape principle and does not provide reasonable amenity in terms of usable private open space. f) The proposed subdivision will result in unreasonable impact on the privacy and amenity of the surrounding properties.

29 The draft Blue Mountains Local Environmental Plan 2002 has now been gazetted as the Blue Mountains Local Environmental Plan 2005. However, there is a savings clause in the BMLEP that refers back to the Blue Mountains Local Environmental Plan No 4. 30 The council refused, by letter dated 8 November 2004, the s 82A review application, for similar reasons as the original application, [Note: Exhibit 1, Vol 2, p 181]. Para (f) was deleted, as it is obvious that the subdivision application has no potential to impact on privacy and amenity of surrounding properties. These aspects would presumably be dealt with were applications for residential development subsequently received by the council. The hearing 31 The appeal was filed on 28 May 2004. The request for a s 82A review of the application was lodged subsequently and the appeal was deferred to permit the council to reconsider the matter. The council refused the review application. 32 At the hearing the court heard expert evidence on behalf of the respondent council from Mr W Langevad, Program Leader - City Planning, Blue Mountains City Council. 33 Residents gave evidence on the site inspection. This evidence was given by: · Mrs J Callaghan, resident of No 36 Emu Road, Glenbrook; · Mrs R Callaghan, resident of No 16 Hodgson Road, Glenbrook; · Mr M Callaghan, resident of No 16 Hodgson Road, Glenbrook. 34 Mr D G Ford, horticulturalist, gave evidence on behalf of the council concerning the health and vigour of the 20m-high Mountain Blue Gum, (Eucalyptus deanei) on the land. 35 On behalf of the applicant Mr G Falson, consultant town planner, and Mr M Hartley, arborist, gave evidence. 36 Mr T O'Toole, an officer with the RFS gave evidence at the request of the Court. 37 Mr B Tully, town planner employed by Blue Mountains City Council prepared the statement of basic facts. The issues 38 On 31 January 2005, the council filed an amended statement of issues, [Note: Exhibit 14]: (a) The proposed development does not comply with the relevant provisions of the Respondent's Draft Local Environmental Plan 2002 ("DLEP 2002"). [Now gazetted as BMLEP] Particulars (a) The principal objectives of DLEP 2002, [now gazetted as BMLEP], relating to identifying and retaining diverse built and landscape elements that contribute to character and prescribed limits to urban development. (b) The relevant Living Conservation Zone objectives. (c) The subdivision provision in terms of minimum lot size, minimum frontage and visual context (the latter relating to the provision of building envelopes that maximise retention of existing gardens and mature vegetation). 2. The proposed development does not comply with the relevant provisions of the Respondent's Local Environmental Plan No. 4, 1982. Particulars (a) Clause 33(2)(c)(iii) a ratio of depth to frontage satisfactory to the Council. (b) Clause 33(2)(c)(iv), requiring a minimum lot frontage of not less than 18.5 metres. 3. The proposed development is not consistent with the average allotment size and average frontages along the relevant section of Emu Road, Glenbrook. Particulars The size and configuration of the existing lot makes the site unsuitable for the proposed development, which will result in the two proposed lots having a design and configuration, which is not consistent with: (i) the average allotment sizes and average frontages of equivalent lots fronting Emu Road in the vicinity of the site, and (ii) the configuration of similar sized lots in the vicinity of the site. 4. The proposed development does not reflect good streetscape principles and does not provide reasonable amenity in terms of usable private open space.

The proposed development will result in unreasonable impacts on the privacy and amenity of surrounding properties.
The proposed subdivision and associated building envelopes do not provide a sufficient asset protection zone (APZ) as required by the Bushfire Safety Authority issued by the Rural Fire Service (RFS) pursuant to s 100B of the Rural Fire Act 1979 on 25 January 2005. Particulars: (a) An assessment of the requisite slope conditions indicated that the proposed asset rotation zone for the development, comprised of a 30 metre inner protection area (IPA) and 10 metre outer protection area (OPA) to be located within Darks Common Reserve, is inadequate and does not comply with: (i) The relevant requirements of Planning for Bushfire Protection); (ii) The provision of Part 3 Division 5 (Bush fire protection). (b) The amended Bush Fire Safety Authority (BFSA) requires an APZ of 50 metres (IPA of 40 metres and an OPA of 10 metres. This was based on the assessment of slope conditions by the RFS, as agreed to by the applicant's consultant Conacher Travers, who authored the Bushfire Protection Assessment for the subject site in December 2003.
The lot size and configuration of the proposed subdivision and associated building envelopes precludes the modification of the proposal to provide the necessary asset protection of lot size 39 The principal-contested issues are: · Planning issue and the new BMLEP; · Bush fire issue. The evidence and findings Planning issue and the new BMLEP 40 Mr Cork, solicitor for the respondent, submitted that the proposed subdivision would, as a result of its size, be out of character with other lots nearby. He referred to the diagram, showing by various colours, the different sized lots along Emu Street, [Note: Exhibit 4, Attachment 2 to the Business Paper enclosure]. On that diagram, existing lots with areas between 750m2 to 1000m2 are shown as pink. White distinguishes existing lots less than 750m2 and magenta distinguishes those existing lots of between 1,000m2 and 1,200m2 in size. Blue distinguishes lots over 1,200m2 in area. 41 He noted that the proposed Lot No 411, at the front, would be 702.6m2 and the rear battleaxe block Lot 412, would be 1,119.098m2 excluding the axe handle (1,321m2 in total). Thus, for the purposes of the diagram, he submitted, the front lot would be white and the rear lot would be magenta. He submitted that there were no white coloured lots (those of less than 750m2) in the visual catchment of the land in Emu Road or were viewed by the Court during the site inspection. He submitted that there were some small lots owned by the Callaghan family, (including the objectors) shown white on the northern side of Hodgson Road. He also submitted that outside the visual catchment area to the north in Emu Road there were some other small lots. He submitted that the proposed subdivided front lot would be 'an anomaly' and a 'small lot' in the context of the visual catchment in Emu Road. 42 He submitted that there would be "…limited opportunities to escape [the constraints of] the width of the lot". He submitted, that the zone objectives of the Living-Conservation Zone must be considered. 43 He referred to the objectives in cl 23 of the BMLEP [see para 9 above] especially subparagraphs (a), (b), (c) and (d). He submitted that these objectives would not be met and on the evidence of Mr Langevad it would be better to redevelop the land as a single dwelling. This he submitted would "…avoid the limitations that this subdivision would impose on the land". [Note: Exhibit 4 p 21]. 44 Mr Cork referred to Blackmore Design Group Pty Limited v North Sydney Council [2001] NSWLEC 279 at para 30 in which Lloyd J concluded, "…[t]he savings clause still has work to do. The proposed development is permissible development by dint of the savings clause". He sought to distinguish the present case on the basis that in Blackmore all the evidence supported development of the land. In that case he submitted determination of the appeal turned on the new environmental planning instrument. He submitted that was not the case here as there is a divergence of opinion between Messrs Falson and Langevad. Mr Langevad says the Court should not approve the present development application and thus there is a significant contest. 45 He submitted further, that as was found by his Honour Lloyd J in Blackmore, at para 30 …[i]t is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is 'antipathetic' thereto: Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council [2000] NSWLEC 84, Talbot J attributed significant weight to the then draft local environmental plan to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 46 Mr Cork submitted that this decision would require the Court, in this present case, to have regard for the aims and objectives of the BMLEP and when thus considered the proposed development would be seen as being inconsistent with those objectives of the Living-Conservation Zone, now in force. He submitted that the subdivision application would also be problematic when considered under LEP4. [Note: Exhibit 4, Business Paper enclosure at p 145]. 47 He submitted that approval of the application would require compromises and would not achieve the standard frontage width under LEP4. It would involve the reliance on an asset protection zone, (APZ) not wholly within the land. Also, there would be constraints on future landscaping that would follow from the existence of the APZ at the rear and the need to build to the west of that zone, ("…[that would] push the building envelope up the site"). There would be also non-compliances with cl 90 of BMLEP given the configuration of the front lot and a suitable ratio of depth to frontage under cl 33(2)(c)(iii) of the LEP4 would not be achieved. [Note: Exhibit 4, Business Paper enclosure p 145]. 48 He asked that the Court give significant weight to the BMLEP and perhaps as in Mathers, determinative weight. He submitted that the wording of the cl 23 objectives under the BMLEP is significant and there is a need to "…re-establish landscaped gardens and settings". The land, he submitted, should be retained as a large lot and the landscaping setting retained. He submitted, that in the planning context, for those reasons the development should not be approved. 49 Mr Hemmings submitted that there would be no potential adverse impact on the streetscape resulting from the proposed subdivision. He accepted that there might be potential for impact due to the erection of dwelling houses. However, he submitted, that Mr Langevad's detailed analysis and volumetric assessment of views over and around new dwellings should be disregarded at this stage. However, he submitted that the erection of a new dwelling at the front, on Lot 411, would present, as does the existing dwelling on the land and "…could not be distinguished from what is presently there". Any impact as a result of the erection of a dwelling house behind the front dwelling would be slight, he submitted, and "…there would not be much impact on the streetscape". He submitted that one might see one storey and not two, over and around the front dwelling. He submitted that because of the topography sloping down from the street there would be little visual impact as a result of erecting a new dwelling to the rear. He submitted that the remainder of the street is "…[characterised] by battleaxe sites and one can't see houses behind [those] due to [the existing] landscaping". He submitted that this potential for impact due to the subdivision application "…cannot lead to refusal". 50 Mr Hemmings submitted it is inappropriate to carry out an analysis, as did Mr Langevad, of the subdivision pattern and character of the street, [Note: Exhibit 4, pp 17-8]. This analysis was shown graphically in the plans referred to by Mr Cork, [Note: Exhibit 4, Attachment 2 also Exhibit 1, Vol 2, p 81]. 51 Mr Hemmings submitted "…better consistency could be arrived at by approval [of the present subdivision application"]. He submitted that refusal of this present application would leave the existing lot as an 'island'. He submitted that "…only one other lot in the catchment that has not been subdivided was opposite [the subject land] at No 27 Emu Road". He submitted that the approval of the subject application "…can't lead to a precedent. [The applicant of] [o]ne other lot might rely on this to be subdivided but this land can be subdivided under the new BMLEP". He submitted, "…the uncharacteristic aspect of this site, is it has not been subdivided". It is an area surrounded by battle-axe blocks. He submitted, "…with the proposed shared driveway over the axe handle the visual impression that one has [from the street] is no different [than presently]". 52 I am persuaded by the submissions of the applicant against the respondent, and I am satisfied that the application would not be contrary to the objectives of the BMLEP. There might be expected when the land is developed that there would be a setback to the street where planting of trees could soften the visual impact of any new front dwelling; there would be an 18m strip between the building zone on Lot 411 and Lot 412 such that significant landscaping could be established, and some existing and future trees could grow in the APZ on the land. The extent of landscaping to the side of future development on the land would be similar to that found in the street beside existing front dwellings. This would be made possible by the applicant's proposal to share the axe handle driveway for vehicular access to each lot. The front lot would be likely to have erected upon it a house in a similar location as the existing dwelling and the rear lot would have a new dwelling situated within a largely cleared area. Despite the fact that the land slopes down from the street, I am satisfied that the treed environment could be re-established after subdivision and residential development of the two lots. The slope of the land would facilitate the construction of a garage for the front dwelling in a basement of that dwelling thus increasing the area of deep soil planting around that dwelling for landscaping. The slope of the land might, by placing a garage under the front dwelling, reduce the extent of use of the building envelope thereby enabling a greater area of landscaping around the front dwelling. This is a matter for consideration at the development application stage of the dwelling. 53 In this regard, I accept the evidence of Mr Falson, that despite not complying with the frontage width of the LEP4 and the size and frontage widths of the BMLEP the proposed subdivision would, [Note: Exhibit A, p 9]: …allow new houses to be constructed on each lot that would be able to be consistent with the existing streetscape and landscape and would provide for acceptable amenity of existing residents on surrounding land. 54 I am thus satisfied that the proposed subdivision would, when considered against the objectives of the Living-Conservation zone under cl 23 of the BMLEP: · retain and enhance the character of residential areas, formed by larger allotments and single dwelling houses within a prominent traditional garden setting; · enhance the landscape character; · ensure development, retains the prominence of landscape elements and traditional garden settings. · ensure that established gardens are retained or landscape settings are re-established as part of any development of land; including development involving major alterations and additions.

55 I would not refuse the application for reason of any planning issue or inconsistency with the objectives of the BMLEP. Bushfire 56 Mr Cork submitted that the evidence of Mr O'Toole representing the Rural Fire Service, (RFS) suggests that an APZ of at least 40m is required to protect future residential development on the land. Mr O'Toole had employed a computer model for bush fire analysis to arrive at a satisfactory width for an APZ for the land. This APZ was narrower by 10m than that previously determined by the RFS by reference to Planning for Bushfire Protection, (PFBP). Even so, Mr Cork submitted that the required 40m APZ couldn't be accommodated wholly on the subject land as required by (PFBP) and as determined by the Court on other occasions. He submitted that the RFS had cautioned that it couldn't support this fire protection zone without a plan of management or a grant of easement over Darks Common for bushfire purposes. 57 He submitted that evidence that the Darks Common Management Trust is willing to enter into a agreement for bushfire control is required before approval could be given to the present application. He referred to the "confusing communications" in Exhibit 18 concerning the provision of an APZ. 58 The Darks Common Management Trust in a letter to Commodore Roberts, the applicant, dated 13 August 2004 had agreed that fire safety measures might be taken in the common within 10m of the common boundary, [Note: Exhibit 18, p 04]. Mr Langevad also recognised that, "…the RFS advise that they are prepared to grant a Bush Fire Safety Authority subject to appropriate conditions which may be incorporated…" [Note: Exhibit 1, Vol 2, p 61]. 59 The applicant is willing to enter into a legal agreement for the APZ within Darks Common with the Darks Common Management Trust, either by way of an easement granted by the Minister or a s 88B instrument under the Conveyancing Act 1919. Mr Hemmings submitted, that the applicant would accept a deferred commencement condition in this regard. The council did not oppose this. The parties have prepared a suitable deferred commencement condition should the Court favourably consider the application. 60 I am satisfied, given the evidence of Mr O'Toole, that future residential development of the land would be adequately protected by a 40m wide APZ. I am also satisfied that this might be achieved by providing a 30m inner protection area, (IPA) within the eastern side of the land and a 10m outer protection area, (OPA) within Darks Common. Given that the parties are amenable to the imposition of a deferred commencement condition to obtain the necessary approvals, I would not refuse the application for subdivision on this ground. Also, the APZ is only required once residential development is undertaken on Lot 412. Other SEPP1 objection to lot width 61 Clause 6(4) of the BMLEP applies and the LEP4 provisions relating to subdivision 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". Under LEP4, the proposal would comply with the site area standards but not the frontage width standard in cl 33(2)(c)(iv) for the front lot. The front lot would be deficient by 2.885m. However, notionally it would comply with the width of the front lot under LEP4 if the axe handle driveway were annexed to the front lot. This is not proposed, however; vehicular access is to be provided to each lot only from the same driveway, to the same effect. 62 Mr Falson for the applicant, supported approval of the application notwithstanding non-compliance with the LEP4 standard of lot width for reason that: Allotment size: · One of the lots meets the minimum size requirements, [under LEP4]. The smaller lot is not inconsistent with other smaller lots in the vicinity of the site and is larger than some. · The lot can contain a dwelling that complies with the majority of Council's requirements, would be consistent with AMCORD principles and would satisfy streetscape and amenity requirements. All that would happen is that a new dwelling would take [the] place of the existing dwelling. The indicative house plans provided comply with the draft LEP requirements at Schedule 2, Part 2 of the draft instrument. · The lot already contains a dwelling that would satisfy Council requirements except for a minor "squeeze point" variation of driveway width adjacent to the southwest corner of the house. Other than this the driveway width is 4.5m wide. This existing dwelling could easily remain if there was a minor relaxation of the access width requirements to account for this "squeeze point". Further, I am advised that the Rural Fire Service has approved the existing access width for a previous subdivision plan submitted to Council. · With the dual use of the access handle for both lots there is no streetscape impact and additionally the front Lot 411 has an effective area of approximately 900m2. · The subject lot is the only remaining large lot in the immediate vicinity that is not subdivided.

Allotment width: · The allotment is already of a less width than the minimum requirement. · Some other lots in the immediate vicinity of the site are similarly narrower than the minimum width requirement. · There would be no adverse impact on streetscape as there would still be only one dwelling fronting the street. All that would be happening (although probably not noticeable) is that the access handle would be used by two dwellings instead of the existing driveway being used by one dwelling. · Apart from No 27 Emu Road, diagonally opposite, the subject lot is the only remaining large lot in the immediate vicinity that is not subdivided.

63 A revised SEPP1 objection to the frontage width standard of LEP4 prepared by Mr Falson was filed supporting the application for subdivision for similar reasons as indicated above, [Note: Exhibit A, Annexure 1, pp 17-8]. 64 I have considered that SEPP1 objection to the frontage width standard of LEP4 in the light of the decision of his Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 paras 22 - 26. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported): …it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case. 65 Taking each question posed by his Honour Lloyd J and answering it, having regard to the SEPP1 objection, [Note: Exhibit A, Annexure 1, pp 17 and 18]: · the 18.5m frontage width in cl 33(2)(c)(iv) of LEP4 is a development standard; · the underlying object or purpose of the standard is as described by Mr Falson to encourage reasonable streetscapes, amenity and character of residential development; · compliance with the development standard would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979, and the proper and reasonable management of an existing residential land resource; · compliance with the development standard would be unreasonable or unnecessary in the circumstances of the case. Development, which complies, with the development standard would be unreasonable or unnecessary, here, [Note: Hooker Corporation case]; · I have weighed up the contrary views of Mr Langevad concerning the SEPP1 objection and have concluded that in the particular circumstances of this case that the objection is well founded, [Note: Exhibit 4, p 16 and Business Paper Annexure, pp 146-8]. I am satisfied that the difficulties he foresaw with regard to siting a future house, especially one under the BMLEP controls, could be addressed through careful design; an active street frontage could be achieved; issues of overlooking and privacy for both future occupants of housing and adjoining residents can be addressed; car parking could be designed so as to not dominate the street; side setbacks and landscaping can be addressed in any future residential development. It is important, that the vehicular access and egress be provided along the common right of carriageway to the rear of any proposed new dwelling on Lot 411. This would enable landscaping to be provided at the front despite the technical deficiency of width under LEP4. 66 I am satisfied that approval of the development notwithstanding the non-compliance with the frontage width development standard for the front lot, could not, in the particular circumstances of this case, be seen as a precedent. In this street, many of the deeper blocks have already been subdivided in a similar manner as that proposed. It would be unlikely that prospective applicants would seek to use this decision to bolster their case for further subdivision in this or other areas. This application was lodged under LEP4 and was left to be decided under the savings clause under the BMLEP. It can be distinguished from many other subdivision applications because of this. 67 It is necessary to consider and give weight to the objectives of the BMLEP. Mr Hemmings submitted that the proposed subdivision would meet the objectives of the Living-Conservation zone under cl 23 of the BMLEP. He submitted that the proposal would "…retain and enhance the character of residential areas that are formed by larger allotments and single dwelling houses within a prominent traditional garden setting". He also submitted that the proposal would not detract from "…the landscape character and setting along roads of heritage significance". He submitted that the proposal would "…retain the prominence of landscape elements and traditional garden settings," and "…that established gardens are retained or landscape settings are re-established as part of any development of land." 68 Mr Cork submitted the proposal would create a lot that would be "an anomaly". He submitted that the proposed front lot would be small lot in the context of Emu Road and would present limited opportunities in the design of future residential "…to escape the width of the lot". He asked the Court to compare the lot sizes in the area and referred to the plans attached and submitted that "…against that background of pattern of development and the constraints that will arise [in the future] that the zone objectives of the Living Conservation Zone need to be considered". 69 I accept the submissions of Mr Hemmings, that the proposal would not fail when considered against the objectives of the BMLEP and should not be refused for reason of the non-compliance with the frontage width for the front lot under LEP4. 70 I would not refuse the application for reason of the ratio of depth to frontage width. I am satisfied for the purpose of calculating this ratio regard may be had for the dual use of the axe handle driveway. Tree 71 The proposed subdivision would not require the removal of the large Eucalyptus tree. However, it is likely that this tree would need to be removed on development of the battle-axe portion of the land, mainly for reason of its proximity to the dwelling envelope and the threat of damage to improvements. 72 The arborists on both sides suggest that the health and vigour of the tree is not good and there are some structural difficulties associated with its trunk and branches. If approval were granted to the subdivision, I consider it would be appropriate to reconsider the status of the tree at the development application stage. 73 Mr Cork submitted that the tree is not a principal-contested issue in the present appeal and would not of itself be a reason for refusal of this application. However, he submitted that the tree contributes presently to the canopy of trees in the area and is visible from the street above the dwellings. 74 I would not refuse the present application for reason of the potential threat to the tree upon future development. Streetscape, amenity, privacy and landscape impacts 75 Mr Falson told the Court, that issues relating to streetscape, amenity, privacy and landscape could be addressed at the development application stage for subsequent development were the subdivision application upheld. He considered these, to be matters that, in his experience, could be addressed despite the non-compliance with the minimum width requirement of the front lot under LEP4. 76 He considered the amenity within the open space areas would be acceptable for the future residents of the subdivision and also for nearby residents as there would be an adequate separation and existing landscaping and perimeter walls and fencing. 77 Mr Hemmings submitted that this issue has more to do with the ultimate development shown as 'indicative development', [Note: Exhibit E] than the subdivision application. 78 I am satisfied that if the two-lot subdivision of the land were approved sufficient area would be available on the front and rear lots to accommodate reasonable residential development. I would not refuse the application for reasons relating to adverse impacts on streetscape, amenity, privacy and landscaping. 79 For the above reasons, the appeal is upheld. Conditions 80 The conditions are those in Exhibit 8 as amended during the hearing. The final conditions including a deferred commencement condition were not received until 5 December 2005. Orders 81 My orders are:

The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

The State Environmental Planning Policy No 1 - Development Standards, (SEPP1) objection to the frontage width under LEP4 is well founded and is upheld.

Development application No 504/0001 lodged with the respondent council on 2 January 2004, to subdivide into two allotments land at Lot 41, DP 4695, being No 34 Emu Road, Glenbrook, is approved subject to Conditions 1 to 26 in Annexure A.

The exhibits are returned with the exception of Exhibits A, B, C, 6, 7 and 8.

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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