Lonergan v Byron Shire Council

Land and Environment Court (NSW)|2009-11-25|Before: Mr P

CITATION : Lonergan v Byron Shire Council [2010] NSWLEC 1059

APPLICANT: Chris Lonergan PARTIES : RESPONDENT: Byron Shire Council

KEY ISSUES: DEVELOPMENT APPLICATION :- Community Title Subdivision, minimum lot size, site suitability of building envelopes, impact on vegetation, public interest

Winten Property Group v North Sydney Council (2001) 130 LGERA 79 CASES CITED: Wehbe v Pittwater Council [2007] NSWLEC 827 Parrott v Kiama [2004] NSWLEC 77

DATES OF HEARING: 25 November 2009, 9 December 2009, 23 December 2009 and 5 February 2010

APPLICANT: Mr I Hemmings (barrister) SOLICITOR: Mr P White of Harris & Co LEGAL REPRESENTATIVES:

RESPONDENT: Ms K Gerathy (solicitor) SOLICITORS: HWL Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application for a 4 - lot community title subdivision at No 40 Corkwood Crescent, Suffolk Park. The contentions identified by council for the appeal are summarised as follows: Adequacy of the proposed lot sizes, involving the consideration of a SEPP 1 Objection. Suitability of the proposed lots to provide adequate building envelopes to accommodate residences. Impact on vegetation. Public interest, precedent. The site 2 The site is described as Lot 268 in DP 867768 and has a 40m frontage to Corkwood Crescent, Suffolk Park. It is of regular shape with a total area of 6795 sq m. 3 The site slopes from the west at a contour of approximately 65m, down to a contour of approximately 20m at the eastern boundary. The site is transacted by a watercourse, which flows from the northern boundary to the south - eastern corner of the site. 4 This land was created by the subdivision of the adjoining land and a restriction on use was registered on the title of lot 268 to the effect: " The burdened lots shall not be further subdivided provided however that Lot 268 may contain strata subdivision within the portion of the lot which is zoned Residential 2(a)". The proposal 5 This proposal is for a community title subdivision to create 3 residential lots and 1 community title lot. The proposed Lot 1 is the road frontage lot that contains a significant natural watercourse, over which a variable width drainage easement is to be created. It is proposed to substantially upgrade the native vegetation in this lot in accordance with a Vegetation Management Plan (VMP). 6 The 3 residential lots then gain access via a right-of way (ROW) approximately 5 - 6m wide along the northern boundary of the property. A concrete culvert is to be constructed within the watercourse to enable access to each of these lots. 7 The residential lots (as shown on Attachment AA) comprise: Lot 2; being the north-western lot having an area of 1202.2 sq m. An 11.5m x 15m building envelope has been designated. Lot 3; being the south-western lot with an area of 1636.96 sq m. An 11.5m x 15m building envelope has been designated adjacent to the proposed access road. Lot 4; is situated on the lower side of the access road and backs onto the community title Lot 1. It has an area of 1292.46 sq m. This lot is wholly within the residential 2(a) zone and a 12m x 15m building envelope has been indicated. 8 The development also involves ancillary earthworks for the benching of the building envelope sites and the construction of the access way, which incorporates a garbage storage area and 2 visitor car parking spaces near the intersection with Corkwood Crescent. A further 2 visitor spaces are proposed at the south western end of the access road within Lot 1. 9 The proposed crossing of the watercourse involves the construction of a 2 x 900 x 600 (nominal size) reinforced box culvert. The access way is to be supported by rock retaining walls. Planning controls 10 The primary control in this matter is the Byron LEP 1988 under which the site is zoned part 2(a) Residential and part 7(d) Scenic Escarpment. The zoning boundary is parallel to the rear boundary of the property and restricts the lots as follows: Lot 2; with a proposed area of 1202 sq m of which approximately 950 sq m is in the 7(d) zone. Lot 3; with a proposed area of 1678 sq m of which approximately 1110 sq m is in the 7(d) zone. 11 Clause 11(1) provides: "The council shall not consent to the subdivision of land for … a dwelling-house within the zones shown on Column1 of the Table to this clause unless the area of each of the allotments to be created is not less than that shown opposite that zone in Column 2 of the Table, and in the opinion of the council each allotment is of satisfactory shape and has satisfactory frontage."

12 Columns 1 and 2 of the Table contained in cl 11 prescribe a minimum lot size of 40 ha for the 7(d) zoned land. Clause 24 of the BLEP deals with development of flood liable land and restricts the granting of consent unless the council is satisfied that: "(i) the development would not restrict the flow characteristics of flood waters; (ii) the development would not increase the level of flooding on other land in the vicinity…" 13 Clause 30 deals with development in the 7(d) Scenic zone and requires consideration prior to granting of consent of the imposition of appropriate conditions relating to building materials, retention of vegetation and siting of proposed buildings. 14 Other relevant clauses are cl 45, which requires arrangements to be made regarding the provision of essential services and cl 49, which suspends certain covenants and laws. 15 The following planning controls were also identified for consideration of this application: SEPP No 1 - Development Standards. SEPP No 44 - Koala Habitat. SEPP No 71 - Coastal Protection. North Coast REP. Threatened Species Conservation Act 1995. Byron DCP 2002, particularly: o Part B - Subdivision o Part G - Vehicle Circulation and Parking o Part M - Fire Mitigation and Management o Part N - Stormwater Management Suffolk Park DCP No 9, including: o Part 4 -- Environmental Design - Subdivision o Part 5 - Environmental Siting The evidence 16 Detailed evidence was presented by: Mr S Layman; Consulting architect/planner for council. Mr C Lonergan; Consulting planner for the applicant.

17 Together with this, a number of objections to the development were lodged and considered. These objections relate to: Overdevelopment of the site for the 4 lots. Non - compliance with the terms of the restrictive covenant. Adverse flooding impacts along the watercourse. Out of character with the neighbourhood. Bushfire risks. Unsatisfactory increase in traffic creating an unsafe road environment where children play. Inadequate arrangements for visitor parking. Likely unsatisfactory impacts on the sensitive fauna and flora. 18 Following clarification of some detailing of the proposal, it was acknowledged by Mr Layman that the site was suitable for a subdivision to create only 2 residential lots. He was dissatisfied with the 2 proposed lots (Lots 2 & 3) on the western side of the access road because of their topography and proximity to the 2(a) residential and 7(d) zoning interface, which restricts building opportunities. 19 On the basis of this acknowledgement, it is apparent that the proposed access way along the northern boundary would be generally acceptable. I understand that proposed alignment for this driveway is satisfactory, subject to the associated retaining walls being constructed in rock or stone work to match other similar walls in the neighbourhood. 20 Likewise, I understand from the submissions that the proposed drainage improvement works, including the new culvert, are satisfactory for access and drainage control to satisfy the provisions of cl 24 of the BLEP. SEPP 1 objection 21 Accordingly, the threshold issue concerns the acceptability of the SEPP 1 Objection to the minimum lot sizes for subdivision of the 7(d) land, where a minimum lot size of 40 ha is prescribed. Both sections of lots 2 and 3 are significantly under this development standard. 22 The SEPP 1 Objection acknowledges that the minimum subdivision lot size of 40 ha is a relevant development standard and notes that the existing lot 268 at 6797.3 sq m is well below the 40 ha minimum. In the absence of specified objectives, the SEPP 1 Objection states that the underlying objective is to: "to prevent the development of 7(d) Zoned land where such development would detract from the visual amenity of the land." 23 The SEPP 1 supports the variation on the grounds that: All development is restricted to the residentially zoned part of the site. The section of the 7(d) land adjacent to the building envelopes is substantially cleared and all trees are to be retained to maintain the visual integrity of this land. The allowance of the objection would result in new dwellings being erected on the new lots, which will retain the residential character of the area, without detracting from the visually dominant lands to the west. The variation to the development allows the subdivision of the 2(a) land to create 3 urban lots, which satisfies the North Coast REP requirement to optimise the yield of residential land and will not prejudice the proper future planning of the area. The Neighbourhood Management Statement sets in place active stewardship policies for the ongoing maintenance and protection of regrowth forest areas within the site. 24 Reference was made in the SEPP 1 to the tests identified in Winten Property Group v North Sydney Council [2001] 130 LGERA 79. The 5 'tests' were applied in the following manner: Test 1: The 40 ha subdivision control is a development standard. Test 2: The underlying object or purpose of the standard is shown to be one of permitting subdivision, yet maintaining a perceived level of habitat integrity. Also, the fact that the residue 7(d) remains visually unaltered within the western areas of the site and the 3 development lots blend into the 2(a) settlement pattern, then underlying purpose of the standard is met. Test 3: The development is consistent with the aims of the State Policy and compliance with the standard would tend to hinder the attainment of the objects specified in section 5(a) 9i) and (ii) of the EPA &Act as no optimisation of residential yield would be achieved and no habitat restoration would occur. Test 4: Compliance with the development standard is unnecessary and unreasonable in the circumstances because the western lots will retain the visually intact 7(d) land, despite the subdivision and the 2(a0 lots conform to the adjacent settlement pattern. Test 5: Based on the unique circumstances of this case, there is minimal risk of this variation of the standard being precedential. 25 However Mr Layman objects on the basis that as the intent of the subdivision is to permit new dwellings, then sufficient area should be available to provide space for an appropriate dwelling and a range of ancillary uses that occur on a residential lot, outside the building envelope. He considers the residual area on both lots 2 and 3 is severely compromised by the location of the zoning boundary that abuts the proposed building envelope. 26 Mr Layman opines the objectives of the development standard are: (a) to protect and enhance the scenic qualities of the zone by limiting the impact of development (buildings, access roads and other external works) within it, (b) to prohibit development within the zone that is likely to have a visually disruptive effect on the scenic quality and visual amenity of the zone. (c) to minimise soil erosion from escarpment areas and prevent development in geographically hazardous zones. 27 Accordingly, he disagrees that the objectives include the optimisation of land zoned 2(a). Instead he considers the over-riding objective for the 7(d) land is to protect and enhance the scenic qualities of the zone. By reference to the various steps identified by the Chief Judge in Wehbe v Pittwater Council [2007] NSWLEC 827, he does not consider the SEPP 1 well founded because: 1. The SEPP 1 objection has not established that the objectives of the development standard are achieved notwithstanding non-compliance with the standard, for the reasons I have given above; 2. The SEPP 1 objection has not established that the underlying objective or purpose is not relevant to the development. indeed it is clear to me that the objective of the standard is fundamental to achieving the objectives of the 7(d) zone and therefore it is relevant to the proposed residential subdivision; 3. The SEPP 1 objection has not established that the underlying objective or purpose would be defeated or thwarted if compliance was required. Compliance with the development standard would support the underlying objectives of the 7(d) zone; 4. The SEPP 1 objection has not established that the development standard has been virtually abandoned or destroyed by the Council's actions in granting consents departing from the standard. Land to the north of the subject site consists of allotments which contain, like the subject site, zone 2(a) and zone 7(d) land. However the 2(a) land component of each lot meets of exceeds the 600 sqm control in the Byron DCP 2002. Therefore while departures from the 7(d) zone site area standard have been approved, the development standard objectives have been met despite the non-compliance because sufficient 2(a) land exists within each lot to ensure that the 7(d) zone objectives are met in each case. 5. The SEPP 1 objection has not established that the "zoning of particular land" was "unreasonable or inappropriate". The 7(d) zoned land is land of High Conservation Value pursuant to Byron LEP 1988. 28 For the determination of this SEPP 1 Objection and taking into account the disparate opinions of the planners, I have also considered the associated merits of the development. I do however note that the Department of Planning granted its concurrence to the objection. 29 It is obvious that the intent of the subdivision is to create suitable lots for dwellings. It is then apparent from the evidence and view that the potential building sites on lots 2 and 3 are significantly constrained by the 7(d) zoning boundary, the slope of the land the location of the access road and turning area. 30 In order to address these constraints, building envelopes diagrams and house sections were produced for assessment. Insofar as the DCP prescribes a minimum building envelope size of 12m x 15m, the proposed building envelopes are 11.5m x 15m for Lots 2 and 3. This is marginally below the minimum, confirming the limitations on the site. Importantly, however, the rear western boundary of the smaller envelopes coincides with the 7(d) zoning boundary. 31 Consideration of the proposed widths of lots 2 and 3 and the building envelope location results in an effective northern side boundary setbacks for both lots of approximately 3m. If the building works and ancillary area are not to encroach into the 7(d) zone and living areas are to be oriented towards the favourable northerly aspect as stated in B2.5 of the DCP, then this outcome would be significantly restricted by the 3m setback. 32 In addition to this restriction, the privacy amenity would be significantly compromised compared to that existing in this immediate neighbourhood. 33 Reference to the general building cross sections for these 2 lots indicates substantial excavation for a spilt level dwelling suit the slope of the land. According to Mr Layman there will be over 2m of cut under the dwelling on Lot 3 and over 1m of cut under the dwelling on Lot 2. This he says is contrary to the DCP cl C2.7, whose objective is "to minimise the disturbance to the natural landform". He does not consider this satisfactory to allow approval of this form of subdivision.

Conclusions 34 Having considered the evidence, the submissions and undertaken a view, I consider that there is insufficient evidence to merit the granting of consent for the 3 proposed residential allotments. Instead, the evidence indicates that the optimal subdivision at this stage would be 2 residential lots, achieved by the consolidation of the proposed lots 2 and 3. 35 The 2(a) zone objectives provide for a range of housing types in appropriate locations that comply the DCP controls for location, form, character and density. Accordingly, section B5.1 prescribes a minimum lot area in subdivisions of 600 sq m for general lots. 36 In this regard, I am satisfied to rely on the evidence of Mr Layman that this minimum area should be effective area for the dwelling and ancillary components. However in the subject case, the effective developable areas of Lots 2 and 3 is considerably below this minimum area, taking into account the development restrictions on the substantive 7(d) portion. 37 It is apparent that this neighbourhood is characterised by attractive, larger dwellings that incorporate extensive outdoor living facilities. I note that the adjoining dwelling includes a swimming pool in landscaped setting in front of the dwelling. The opportunity to build reasonably compatible dwellings on lots 2 and 3 seems severely compromised by the location of the rear alignment of the (smaller) building envelopes and minimal northern side setback to achieve good solar access. 38 Furthermore, the cross sections indicate that some regrading works at the rear of dwellings would be required to control overland flows down the hillside. Any such works within the 7(d) land would require careful assessment, prior to granting consent in my opinion, to ensure the zone objectives are achieved. 39 In this regard, I have considered the reference to the planning principle in Parrott v Kiama [2004] NSWLEC 77 revised - 16/03/2004, where Murrell C said: "[17] When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them." 40 It seems to me that the application of this planning principle is appropriate in this case because of the environmental sensitivity and constraints on the land and the significant restrictions imposed by the 7(d) zoning interface. 41 Accordingly, the approval of a 2 lot residential subdivision would enable subsequent lodgement of a development application for building on "Lot 4", where I am satisfied an appropriate dwelling is capable of complying with the controls. 42 Likewise, it seems reasonable that an appropriate dwelling house could be designed to fit into the consolidated residential 2(a) area, without unduly encroaching into the 7(d) area. This would allow scope for the design to incorporate orientation of living rooms and associated outdoor living areas to the north. 43 If this detailed design approach then demonstrates that it would be possible to achieve another suitable dwelling on a residual area of the residential portion of the consolidated lot, this could be the subject of a future subdivision application. This detailed design approach would then be consistent with the approach presented in Parrott, requiring detailed building details prior to the approval of a subdivision of environmentally sensitive or constrained land. 44 In reaching this determination, I have considered the evidence on the other merit matters discussed. This includes the inclusion of the proposed on -site visitor car parking spaces. Also the provision of an appropriate safety barrier along the retaining walls to provide adequate safety, as discussed by the experts. These matters would be covered by the conditions of consent. 45 In the circumstances of this determination, the area of the 7(d) land would not be subdivided. But it would form part of the 'new consolidated lot' and on the basis of the aforementioned merit assessment; I consider it reasonable to allow a SEPP 1 objection because the zoning objectives can be achieved. 46 For these reasons then, the Court intends to grant consent to the 3 - lot subdivision, which incorporates the amalgamation of the proposed lots 2 and 3, subject to settled conditions. Court orders 47 The Court orders are: 1 The appeal is upheld. 2 Development consent is granted to DA No 10.2007.798.1 for a Community Title subdivision of Lot 268 DP 867768 creating 2 residential and 1 community lot subject to the conditions in Annexure A. 3 The exhibits may be returned except for 1, 4, 7 and J.

      R Hussey
      Commissioner of the Court
      ljr

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