Krecichwost v Camden Council

Tenacity Consulting v Waringah [2004] NSWLEC 140; CASES CITED: .

DATES OF HEARING: 13 September 2005 EX TEMPORE JUDGMENT DATE : 09/13/2005

APPLICANT Mr A Hawkes, solicitor Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr G Castellan, solicitor Ritchie & Castellan

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

05/10330 Tiffany Krecichwost v Camden Council This decision was given as an extemporaneous decision at an on site hearing. It has been revised and edited prior to publication.

JUDGMENT 1 Commissioner: This is appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Camden Council (the council) of an application to subdivide Lot 31 DP 740025 being 269 Cobbitty Road, Cobbitty (the site) into three allotments.

2 The present property falls within two zonings - they being the 1(a) Rural Zone and the 1(v) Village Zone. The present allotment is one which does not conform with lot sizes required within the 1(a) zone with the minimum allotment size for that zone being 40 ha. 3 If the application were to be approved, the resulting residual allotment in the 1(a) zone would be still nonconforming and would be marginally increased in the extent of its nonconformance. As a consequence the applicant has needed to provide an objection pursuant to State Environmental Planning Policy No. 1 (SEPP 1) and that objection needs to be sustained to permit the residual allotment for proposed for the 1(a) zone to be permitted. 4 I am satisfied that the nature of the increase in the noncompliance of that allotment is of a sufficiently small nature as to be, in effect, de minimis and that an extensive analysis of the reasons why the SEPP 1 objection should be sustained is not acquired.

5 I have reach this conclusion despite the fact that I have a letter in evidence from the Acting Team Leader of Sydney Region West of the Department of Infrastructure Planning and Natural Resources indicating that, in the opinion of that officer, the Director-General's concurrence would have been unlikely to have been granted for a variety of reasons - none of which need detain me in this matter.

6 The critical element in this appeal arises from the provisions of cl 10(3) of the Camden Local Environmental Plan (the LEP). 7 Clause 10(3) is part of a facilitating clause which permits what is known, in shorthand terms, as a fuzzy boundary at zone interfaces between a number of zones that are enumerated in cl 10(1). These include both the 1(a) and the 1(v) zones. 8 The provision permits, in effect, an elasticity of the zone boundary of 50 m at the point of the zone boundary between two adjoining zones (if both are nominated zones - as is the case in this instance) in order to facilitate development being carried out in the adjoining zone. 9 However, cl 10(3) provides that: The Council shall not consent of the carrying out of development referred to in subclause (2) unless, in the opinion of the Council, the carrying out of the development is desirable due to planning, design, ownership, servicing or similar criteria relating to the most appropriate development of the land.

10 In the present case, there has been some discussion as to whether or not a subdivision yielding two lots might be possible - it being the evidence of Ms Morris, the council's Director of Development and Environment, that such a subdivision might be possible in a theoretical sense and it is certainly at least theoretically possible entirely within the 1(v) zone thus not triggering the provisions of cl 10(3).

11 In any event, a two-lot subdivision application is not before me and I consider it inappropriate, under all circumstances and given the conclusion that I have reached, to express any opinion with respect to it. 12 For the application to have succeeded it had to cross two thresholds that arise as part of cl 10(3).

13 The first is that, as a question of general planning principles, it had to be acceptable in its context. 14 Mr Nash, town planner on behalf of the applicant, gave extensive evidence the existing settlement patterns in the vicinity of the site on Cobbitty Road and I had the opportunity of walking and examining them. The evidence and the view were reinforced by the extract from the LEP map that was provided to me. 15 I am satisfied that, in the vicinity of the site and for the site itself, development that might be described as being "2 deep" in or very close to the 1(v) zone boundary could be acceptable.

16 The difficulty that arises for the applicant in proposing the 3-lot subdivision is whether or not it is desirable. This is a requirement for positive benefit arising from cl 10(3) of the LEP. 17 It is conceded, as I understand it, by the council that no issues arise with respect to the ownership or servicing of the proposed allotments and that, at most, these are neutral elements in these proceedings. 18 The words or similar criteria, in my view, provide no assistance in adding anything to the four criteria enumerated, in the alternative, in the present provision. 19 It is therefore necessary for the applicant to demonstrate that, in planning or design terms, there is some significant positive benefit in permitting a 3-lot subdivision - thus making it desirable. I am satisfied that it is simply not possible to demonstrate that that is the case.

20 There are a number of positive benefits applying to the present approved proposal for the large dwelling, which is currently under construction, on what would be the residual rural zone allotment. 21 These include the removal of an unsightly former apartment building and the carrying out of extensive landscaping - the landscape plan for which is in evidence in Ms Morris's Statement of Evidence. 22 That landscaping will provide extensive perimeter landscaping to the south and, relevantly, the east and west of that development and will undoubtedly improve both screening of the dwelling under construction and provide a pleasant landscape outlook for the properties to the front of the site with frontages to Cobbitty Road and rear boundaries directly into the site - there being three such properties. These are already required elements and are in no way dependent on approval of the present subdivision application. They the therefore cannot assist the present application. 23 Mr Nash gave evidence concerning the marginal relocation of the proposed driveway to move it somewhat to the west of the alignment approved for the new dwelling on the proposed residual allotment. This, it was his opinion, would provide some additional protection to a large eucalypt on the eastern side of the access handle. This additional protection (apparently not necessary given the present approved position of the driveway to the new dwelling on the proposed residual allotment) would be offset, in my view, by the impact on the house to the west of the driveway by the movement of the driveway closer to it and the added use of the driveway to service three dwellings rather than one. 24 I am also satisfied that the building of dwellings, on the proposed two additional allotments closer to Cobbitty Road, would interrupt, at least to some extent, the outlook to their rear of the properties that face Cobbitty Road. 25 Whilst the extent of the interruption might be arguable and might not be so as to be overwhelming and warrant refusal if the assessment were being done on a neutral basis (if I were to apply the principles set down by Roseth SC, in Tenacity Consulting v Waringah [2004] NSWLEC 140), I have however, necessarily concluded that the impact on the views from the rear of these properties, particularly from 273 Cobbitty Road, (which is a property built entirely to the zone boundary) will be negative. I do not need to determine the degree of negativity - simply it being negative makes it undesirable.

26 I am satisfied that there is no positive benefit that would arise in a planning or design sense for any of the three dwellings that presently front Cobbitty Road in the vicinity of the site nor for the residents to the north-east of the entrance to the site in permitting two additional dwellings to be constructed towards the front of the site. 27 In reaching this conclusion I have considered the terms of the Cobbitty Village Residential Development Guidelines adopted by the council on 11 September 2000, and which are prayed in aid by both the applicant and by the council. 28 It has been accepted by the applicant that they are appropriate to be regarded as guidelines. They are not in my assessment so precise as to be determinative but they need to be given considerable weight as a consequence of the adoption process outlined briefly by Ms Morris as involving extensive public consultation.

29 The site is identified specifically by street number as being one of a number of sites identified as falling within a multiply located precinct 4 - being an infill precinct. 30 I am satisfied that applying those guidelines is, importantly, confined (as the first sentence of the guidelines expressly says) to the land which is zoned "village" [1(v)]. 31 To that extent, I am satisfied that the extent to which those guidelines apply to the property at 269 Cobbitty Road is only to the portion of the property that is zoned "village". Thus, the guidelines only identify that portion of the site within the 1(v) zone as being for "infill". 32 Even if I were incorrect in so concluding, I am satisfied that nothing in those guidelines creates a presumption of desirability of a subdivision utilising the provisions of cl 10 of the LEP of the reasons I have enunciated.

33 As a consequence of that, the orders of the Court will be that: 1. The appeal is dismissed; and 2. Development application 616/2004 to subdivide Lot 31 DP 740025 being 269 Cobbitty Road, Cobbitty is determined by the refusal of development consent. 34 I will retain the exhibits to enable transcription of the decision and they will be returned to the parties with the formal orders at a later date.

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