Saman Monther Abdul Monam Al-Zohairy v Central Coast Council

Category: Principal judgment

Parties: Saman Monther Abdul Monam Al-Zohairy (Applicant)
Central Coast Council (Respondent)

Representation: Lionheart Lawyers (Applicant)
Local Government Legal (Respondent)

File Number(s): 2024/00099678

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These proceedings are brought under Class 1 of the Court’s jurisdiction, and are an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Central Coast Council (Council) of Development Application DA/1409/2023 (DA), seeking development consent for the Subdivision of Lot 17 in Deposited Plan 262327 at 2A Stornaway Crescent, Berkley Vale, into two (2) Torrens title lots of 451m2 and 966m2, construction of stormwater and sewer connections and removal of nine (9) trees.

The development application

2. The original development application was lodged with Council on 3 July 2023. It sought approval for subdivision of one lot, into two at 2A Stornaway Crescent, Berkeley Vale (Site). Specifically, the proposal included a Torrens title subdivision of the Site into two lots, Lot 1: 966m² with an 18.5m wide frontage to Stornaway Crescent and an average gradient of approximately 17%, and Lot 2: 451m² with an 11.015m frontage to Sunnyhills Terrace and an average gradient of approximately 8%, and the removal of six (6) canopy trees (Exhibit A).

3. The original DA was notified between 11 August 2023 and 25 August 2023. One submission was received with concerns pertaining to inconsistencies in the application, loss of privacy, adverse impacts on amenity and tree removal. At the commencement of the site view, no objectors provided oral submissions to the Court, however the objector who provided an earlier written submission, expressed they wished it to be considered by the Court.

4. During the hearing on the 27 March 2025 a Notice of Motion was granted by the Court, where Council, as the relevant consent authority approved the Applicant amending DA/1409/2023 to amend the description of the proposed development to:

Subdivision of Lot 17 in Deposited Plan 262327 at 2A Stornaway Crescent, Berkeley Vale, into two (2) Torrens title lots of 451m2 and 966m2, construction of stormwater and sewer connection and removal of nine (9) trees (Amended DA), pursuant to s38(1) of the Environmental Planning and Assessment Regulation 2021.

5. As part of the Amended DA, the Applicant prepared concept architectural plans of a dual occupancy development on Lot 1 and a single dwelling house on Lot 2. The proposed subdivision pattern is shown in Figure 1 in the Plan prepared by Katris Architects (Exhibit C, Drawing A009, Issue B, Dated: 30 January 2025). It should be noted however, the Applicant in the Amended DA is not seeking approval of the proposed building envelopes, but provided the concept plans to support the application and demonstrate that the lots were capable of reasonable development having regard to development controls in the Central Coast Local Environmental Plan 2022 (CCLEP) and the Central Coast Development Control Plan 2022 (CCDCP).

Figure 1 – Proposed subdivision Plan Source: EXHIBIT C Katris Architects (Drawing A009 Issue B dated 30.01.2025).

History and locality of the site

6. 2A Stornaway Crescent Berkley Vale (Site) was previously a Council owned grassed reserve, with a utility easement, subject to overland flow and services, which also facilitated an informal pedestrian walkway from Stornaway Crescent through to Sunnyhills Terrace. On 13 April 2016, Council considered a report on the ‘Portfolio Review Project’ which outlined several properties (including the subject site) for sale stating: “The above sites recommended for immediate sale are small to medium sized, zoned residential with limited development opportunities*”* (Exhibit B, Tab 3, Folio 161). The Site was purchased by the Applicant by way of transfer of registered title on the 4 April 2023 (Exhibit C).

7. The Site is zoned R2 Low Density Residential under the CCLEP 2022 with a total area of 1417.1m2 and is presently undeveloped. It is irregular in shape with an 18.5m wide frontage on Stornaway Crescent on the east and an 11.015m frontage to Sunnyhills Terrace on the west. The Site slopes from east to west with a maximum reduced level (RL) of 32.89m Australian Height Datum (AHD) at Stornaway Crescent and a minimum RL of 22.45m AHD at the western boundary fronting Sunnyhills Terrace. There is no vehicle access, and several canopy trees are present on the Site and on the adjacent Stornaway Crescent road reserve. Refer to Figure 2.

Figure 2 - Aerial photograph of the site (Source: Exhibit 1)

8. The Site also contains an easement of variable width that occurs along the entire length of the northern boundary, and a services easement that runs part of the way along the northern boundary from Sunnyhills Terrace towards the centre of the site. Refer to Figure 3.

Figure 3 – Easements on Lot 17 (Exhibit B, Tab 2)

9. Notwithstanding the alterations in the Amended DA, there are still five issues of contention that remain in dispute between the parties which can be summarised as follows:

10. Flooding

11. Essential services

12. Inappropriate subdivision

13. Tree removal; and

14. Insufficient information

15. Remaining individual contentions under each of the broader contention headings have either been resolved by provision of further information or will be examined below where they are relevant. However, prior to addressing these contentions several statutory preconditions must be considered.

Statutory Context

Environmental Planning and Assessment Act 1979 (EPA Act)

11. The Courts role in the appeal is to exercise the functions of the consent authority and determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The Court must take into consideration matters in s 4.15(1) of the EPA Act which include environmental planning instruments (including development control plans), impacts of the development, suitability of the site for the development, submissions on the proposed development and public interest.

12. It should be noted that consideration of the matters in s 4.15 in this case is confined to the subdivision layout currently proposed by the Applicant.

State Environmental Planning Policy (Exempt and Complying Development) 2008

13. During the hearing, both parties’ experts accepted that the development application cannot be exempt development under the Housing Code within Part 3 of the SEPP (Exempt and Complying Development Code) 2008 due to the existing over land flow path, and the site as being defined as a ‘flood control lot’ pursuant to Clause 5.21 of the Central Coast Council Local Environmental Plan 2022 (Hearing Transcript Day 1, pg 8, [45]).

Central Coast Local Environmental Plan 2022 (CCLEP 2022)

14. Clause 2.6(1) provides that land may be subdivided but only with development consent which is the purpose of the Amended DA.

15. In accordance with cl 2.3(2), a consent authority must have regard to the objectives of the zone. The objectives of the R2 zone are:

• To provide for the housing needs of the community within a low-density residential environment.

• To enable other land uses that provide facilities or services to meet the day-to-day needs of residents. [1]

• To encourage best practice in the design of low-density residential development.

• To ensure that non-residential uses do not adversely affect residential amenity or place unreasonable demands on services.

• To maintain and enhance the residential amenity and character of the surrounding area.

Contention 1 – Flooding

16. Clause 5.21 of the CCLEP 2022 specifies that development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development:

(a) is compatible with the flood function and behaviour on the land, and

(b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d) incorporates appropriate measures to manage risk to life in the event of a flood, and

(e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or watercourses.

17. To address the flooding contention, the Court is assisted by the Joint Expert Report (JER) on Flooding prepared by Mr Bacha (Applicant) and Mr Dewar and Mr Dee (Respondent) whom all agree the land is within a flood planning area (Exhibit 4). A Flood Impact Assessment Report has been prepared by Mr Bacha of Telford Engineering (Exhibit 4, Issue B, December 2024).

18. The Site is identified as being subject to flooding in the Tuggerah Lakes Southern Catchments Flood Study 2018 and is an overland flow path for surface water travelling downhill from Stornaway Crescent to Sunnyhills Terrace as shown in Figure 4. (Exhibit 4 JER Flooding, p 2).

Figure 4 - Extract of the 1% AEP Pre-Development Provisional Hazard Plan with the Site outlined in red. Source: Statement of Facts and Contentions Exhibit 1 - (Flood Impact Assessment Report by Smart Structures Australia and MBR Consulting Engineers*)*

19. To determine satisfaction with this Clause each of the subsections of cl 5.21 is examined below and the Court has considered Exhibit 4 and the conceptual architectural plans prepared by the Applicant (Exhibit C, prepared by Katris Architects Pty Ltd, Issue B dated 30 January 2025) which were prepared to support the development application to demonstrate that the proposed subdivision lots are capable of having reasonable residential development that comply with the CCLEP 2022, and the CCDCP 2022.

20. When examining Exhibit C, it is noted that the proposed buildings are on piers with elevated subfloors, and it would be necessary to consider the height of the proposed buildings. Clause 4.3 of the CCLEP 2022 stipulates the height of a building on any land must not exceed the maximum height shown on the CCLEP 2022 Height of Buildings Map. The Height of Buildings Map on the Planning Portal does not show a prescribed height control for the Site. However cl 2.1.2.1 of the CCDCP 2022 states where the maximum height for dwellings in areas not specifically mapped by the Central Coast LEP a maximum building height of 10m applies and also that building height shall generally not exceed two storeys. It is also noted that three storey dwellings could also be permitted on steeply sloping sites, where the three-storey component extends for only a small section of the dwelling or where the lowest storey is contained predominantly within a basement level below natural ground and the maximum building heights are not exceeded. The concept architectural plans prepared by Katris Architects in Exhibit C are less than 10m.

21. Clause 5.21 (2)(a), the flood experts agree that the site is only minorly affected by overland flow (Exhibit 4, JER Flooding, p 2) and placing buildings on piers with an open subfloor would result in acceptable flood impact to neighbouring properties (Exhibit 4, JER Flooding, p 4). Mr Bacha contends that the impacted area is a small strip through the site and that this portion of the site does not affect overall floodplain storage or flow paths (Exhibit 4, JER Flooding, p 4). However, concerns raised by Councils expert Mr Dewar articulate that the proposed concept development, specifically buildings B and C are situated directly in the overland flow path, and that the “existing flood function of the land would be best maintained by avoiding placing buildings in the flow path*”* (Exhibit 4, JER Flooding, p 4).

22. Clause 5.21 (2)(b), the experts agree the flood affected portion of the site is limited to a minor strip of land and that the proposed development will not result in detrimental flood affectation to other development or properties (Exhibit 4, JER Flooding, p 5) provided that the buildings are constructed on piers with open subfloor and open fencing. The experts disagree on the varying impact of placing piers and overall buildings in the flow path. Mr Dewar raises the following key arguments:

“The Building B driveway is designed to capture overland flow at the top of the site and direct it underneath the building. While this does not result in a flood impact, it does rely on the ongoing function of private drainage to manage catchment floodwater. This is not considered best practice. Best practice would be to avoid placing the buildings outside of the flow path”. (Exhibit 4, JER Flooding, p 5).

“The NSW Flood Risk Management Guideline FB02 states that in the upper reaches of an urban system where no formal watercourse exists, it is important to maintain flowpaths. At this site, a clear flowpath exists which is currently unobstructed. Building 2 and 3 is situated directly in the flowpath. While it is acknowledged that a pier design will not have a flood impact to neighboring properties, the building will disturb the flow compared to the current situation.” (Exhibit 4, JER Flooding, p 6).

23. Mr Bacha acknowledges “There is a minor obstruction to existing flood flow paths and minor reduction in floodplain storage as a result of the proposed development”. (Exhibit 4, JER Flooding, p 5). He then continues that the proposed works are minimal within the flood impacted area ensuring floodwater movement and capacity and combined with stormwater management measures incorporated into the design could mitigate any impacts on downstream areas. (Exhibit 4, JER Flooding, p 5). These statements appear inconsistent with Mr Bacha’s earlier evidence on p 4 of the JER which he states:

‘The site is only minorly affected by overland flow, with the impacted area limited to a small strip traversing through the site. This portion of the site does not affect the overall floodplain storage or flow paths, as demonstrated in the Flood Impact Assessment Report.’

24. Clause 5.21(2) (c) requires the consideration of risk to life and the evacuation of people or other safety concerns. The experts agree (Exhibit 4, JER Flooding, p 6-7) that the site has an evacuation route that would be safe for people, vehicles and buildings. However, Mr Dewar disagrees on safe occupation of the site due to the placement of buildings within the flood impacted flow path, despite both experts agreeing the site is subjected to minor local overland flow. Conversely Mr Bacha states:

“The flood affected portion of the site is limited to a small strip that does not interfere with key access or egress points. Although the building 2 and 3 is located within the flow path, it has been demonstrated that the evacuation and safety risk is minimal.” (Exhibit 4, JER Flooding, p 6-7)

25. Clause 5.21(2)(d), requires appropriate measures to manage risk to life in the event of a flood. The experts agree that the concept building floor levels are in accordance with the Councils flood planning controls to ensure protection from flood events, and Mr Dewar for Council accepts that the buildings can be “designed with flood resilient construction materials and methods” (Exhibit 4, JER Flooding, p 8) and has safe unobstructed access for emergency vehicles. Again, however disagreement remains between the experts regarding the placing of the buildings within the overland flow path.

26. Clause 5.21(2) (e) requires that that the development will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or watercourses. Subdivision works on the Site could be managed in accordance with best practice erosion and sediment controls as that shown in Exhibit N (Sediment and Erosion Control Plan and Details, Telford Civil, Drawing 106, Issue E, Dated 20 February 25) to avoid adverse impacts to the environment to avoid erosion, siltation or any other impacts to riparian areas or watercourses.

27. Based on the evidence from the Exhibit 4 – JER Flooding, the Court cannot be satisfied that the granting of consent to the subdividing the Site would comply with the subsections of cl 5.21(2)(a) and (b). Specifically, that the Site is compatible with the flood function and behaviour on the land, and it will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, regardless of if future residential development are to be designed on piers with an open subfloor to accommodate the minor overland flow affectation.

28. As shown in Figure 5 below, the Court cannot accept the statement by Mr Bacha that the proposed development contains minimal works or structures within the flood impacted area. As highlighted by Mr Dewar, Buildings B and C are situated directly in the overland flow path. Furthermore the potential flood affectation on other properties cannot be satisfied due to the inconsistent statements from Mr Bacha at [23] noting the minor obstruction to existing flow paths and minor reduction in floodplain storage as a result of the proposed development.

Figure 5 Proposed Scenario 1% AEP Flood Velocity Mapping - Source: Figure 5.4 from Flood Impact Assessment (Dated December 2024, Revision B, Exhibit 4, JER Flooding, p 43).

Contention 2 – Essential Services

29. Clause 7.6 of CCLEP 2022 provides that development consent must not be granted unless the consent authority is satisfied that all of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access,

(f) the collection and management of waste.

30. As outlined in the Exhibit 6 — JER Flooding (p 12) the proposed subdivision lots can be supplied with water as existing 100mm water mains available in Stornaway Crescent and Sunnyhills Terrace. Similarly, the site has a supply of electricity in both Stornaway Crescent and Sunnyhills Terrace. The Council is also satisfied that both lots could be serviced with an extension to the existing 150mm Council gravity sewer main. Both proposed lots can also achieve vehicle access from the Street. Waste would be able to be collected from both streets on Stornaway Crescent and Sunnyhills Terrace.

31. Clause 7.6(d) pertains to stormwater and is the main contention in dispute between the parties. The Applicant has proposed an inter-allotment stormwater drainage pipeline to manage stormwater from each proposed lot and connection to Council’s public street drainage system in Sunnyhills Terrace (Exhibit 4 – JER Flooding, p 13). Council initially opined it has not been adequately demonstrated that sufficient capacity exists in the downstream drainage infrastructure to accommodate additional flows from the development. However, the Council indicated that this contention was resolved by the Hydraulic Assessment Report (Exhibit F, Telford Civil Consulting Engineers, dated 17 February 2025) which confirms that there is sufficient capacity in the drainage infrastructure to accommodate the anticipated additional flow from future residential development arising from the proposed subdivided lots.

32. The remaining part of the contention arises in relation to the width of the stormwater disposal easement over proposed Lot 2 and if the width of the easement should be 0.9m as proposed by the Applicant in Exhibit N (Stormwater Concept Plan, prepared by Telford Civil, DWG 101 Issue G, dated 27 February 2025) or 1.5m as outlined by Council’s expert Mr Dee in accordance with Central Coast Councils Civil Works Specification Design Guideline 2020 (Exhibit 9) (Council Specification).

33. Section 10.8.1 of the Council Specification outlines that drainage easements:

“should be wide enough to contain the pipeline and provide working space each side of the pipeline for future maintenance activities’ (Exhibit 9, p 84).

34. Table 10.8 on p 85, of the Council Specification specifies the minimum easement width to be 1.5m for Pipe diameters for interallotment drainage (<300 maximum). However, p 84 of the Specification also provides flexibility in its application stating:

“In some developments direct maintenance access to a stormwater system within a lot may be difficult or prevented entirely. In such cases, easements and interallotment pipelines shall not terminate at a dead end but shall be extended to a point where access may be gained from a road reserve or other public area with direct access. A junction pit shall be located on both ends of the pipeline to facilitate access. Easements shall be provided in private property over public and interallotment drainage systems and overland flow paths.”

35. The Applicant has proposed a solution with the 0.9m width easement as shown in (Exhibit N - Essential Services Plan Revision E Drawing 108) with junction pits at each end of the pipeline to facilitate access, with two pits being accessed from Sunnyhills Terrace and two pits at the rear boundary of the proposed Lot 1 where it is anticipated to be an open rear yard with access to the pit.

36. In oral evidence, Councils expert Mr Dee accepted that narrower easements maybe acceptable in established residential subdivision areas however he was of the opinion that in this case of a vacant lot with a two-lot subdivision the 1.5m requirement should be met. Mr Dee did not accept that it would be feasible to get machinery into 0.9 m wide easement to service the pipe if something went wrong in the future. Conversely, the Applicants expert Mr Bacha contended that it was common to have 0.9m setbacks and stated:

“I’d say 95% of the DAs we work on, we’re dealing with setbacks less than a metre, typically around the 900; that’s the vast majority that I find. So in that instance, other authorities have shown leniency based on merit and granted permission for 900 wide easements. Now, in my opinion, maintenance to a 900 wide easement can be provided*” Hearing* Transcript Day 2 (28 February 25) p 91(10).

37. In assessment of this issue, one needs to consider if the proposed 0.9m width easement meets the objectives of cl 2.4.2.1 of the CCDCP which states:

▪ To ensure that land can be adequately drained of stormwater so as not to impact on adjacent sites and that the development does not contribute to drainage or flooding problems.

▪ To provide direction with regard to Council’s requirements for the management with regard to both the quality and quantity of stormwater runoff.

▪ To provide a stormwater system that can be economically maintained and managed.

38. The Applicant contends that flexibility is required in this case due to the unusual shape of the existing lot and the width of the proposed Lot 2. Council contends that the fact that the site is narrow on Sunnyhills Terraces frontage is not justification for a variation to Councils Specification.

39. The width of proposed Lot 2 at Sunnyhills Terrace is 11.015m. Within this 11.015m, there is already the existing Council easement of 2.57m (Transcript, Day 1, p 21 [5-10]), leaving 8.445m width remaining. On review of Exhibit N, (Telford Civil Stormwater Concept Plan, Drawing 101, Issue G, Dated 27 February 25), if a reduced a stormwater easement of 0.9m, as proposed by the Applicant, is applied, there is 7.545m width remaining. Alternatively, if there is 1.5m easement as per Council Specification, there is a 6.945m width remaining to potentially construct a dwelling. It is apparent that these easements both existing and proposed would constrain any future proposed built form on Lot 2.

40. Exercising discretion in this circumstance and applying Councils Specification flexibly, the Court could accept that the proposed 0.9m easement with pits at either end solution could comply with the provisions of Council’s Specification outlined in [34] and thereby meet the requirements of cl 2.4.2.1 which mandate all development to comply with Councils Civil Works Specification. However, this is not the only constraint on this site. The future built form on both Lot 1 and Lot 2 is only conceptual, yet it is expected it would be constructed on piers with an open subfloor to avoid the overland flow path. Therefore, when considering the third bullet point objective in cl 2.4.2.1 of the CCDCP 2022, future maintenance and management of the stormwater system on both proposed Lots, access to these pits in the future for service or management is unknown because the building structures are conceptual. However this could be impeded by some form of structures on piers and with open subfloors, and specifically challenging on proposed Lot 2 with a narrowed 0.9m easement.

41. For this reason, the Court does not accept the stormwater connection’s ability to be economically maintained and managed in accordance with the objectives of cl 2.4.2.1 of the CCDCP 2022. Therefore, the Court cannot be satisfied that of cl 7.6(d) the CCLEP 2022: that adequate arrangements have been made for a stormwater solution for the subdivision.

Contention 3 – Inappropriate subdivision

42. Council contends that the development application should be refused as the Applicant has not demonstrated that the proposed Lots can suitably accommodate future residential development due to site constraints relating to slope, narrowness, overland flow paths and easements (Written Submissions, 6 March 2025 at [23]). It is acknowledged that this broader category heading of Inappropriate Subdivision encompasses numerous issues in the Statement of Facts and Contentions (SOFAC) (Exhibit 1), however this section will focus on the most salient points including:

43. Minimum Lot Width and application of cl 2.4.3.2 of the CCDCP 2022.

44. Desired future character of the site and compliance with the CCDCP 2022.

45. Design of the proposed future dwellings and compliance with the CCDCP 2022.

46. To further address the inappropriate subdivision contention, the Court is assisted by the Joint Expert Report (JER) on Planning prepared by Mr Betros (Applicant) and Ms Englund (Respondent (Exhibit 3, 20 December 2024)).

Minimum Lot Width

44. CCLEP 2022 cl 4.1 stipulates the minimum subdivision lot size. The size of any lot resulting from a subdivision of land is not to be less than the minimum size shown on the CCLEP 2022 Lot Size Map. The Lot Size Map requires a minimum lot size for the subject site land of 450m2. For the purposes of this application, Lot 1 is proposed to have a minimum area of 966m2 and Lot 2 is proposed to have an area of 451m2 and therefore both proposed lots comply with the minimum lot size control (JER, Exhibit 3, p 3).

45. The parties disagree with the application of the CCDCP 2022 to the site. Council contend that the Lots do not comply with the CCDCP 2022 and should be adjusted due to the site constraints of the slope and easements. The contentions listed in the SOFAC are summarised in the Table 1.

Table 1 Summary of Contentions relating to Lot Width (Source: Exhibit 1 SOFAC)

| Lot 1 | Lot 2 | | 3a) ‘Proposed Lot 1 has a minimum area of 966m², a minimum width of 18.5m and an average gradient of approximately 17%. Proposed Lot 1 is inconsistent with the 20m minimum lot width and 1000m² minimum lot area prescribed by clause 2.4.3.2(f) of CCDCP 2022. | 3c) ‘Proposed Lot 2 has a minimum area of 451m², a width ranging between 10.0m and 15.1m and an average gradient of 8%. Proposed Lot 2 is inconsistent with the 15m minimum lot width prescribed by clause 2.4.3.2(f) of CCDCP 2022. | | 3b) Proposed Lot 1 is burdened by an easement for drainage and services that ranges in width from 1.35m to 4.26m, or up to 18% of the width of the proposed undersized lot.’ | 3d) Proposed Lot 2 is burdened by an easement for drainage and services that ranges in width from 2.57m to 4.26m, or 25% - 40% of the width of the proposed undersized lot’. |

46. CCDCP 2022 Chapter 2.4 cl 2.4.3.2 is titled ‘Slope’ and includes Tables 2 and 3 which are included as Figure 6 and Figure 7.

Figure 6 Source: Table 2 from CCDCP 2022, cl 2.4.3.2

Figure 7 Source: Table 3 from CCDCP 2022, cl 2.4.3.2

47. On the site inspection, it was observed the RL of the Site sloped west towards Sunnyhills Terrace from Stornaway Crescent and had localised areas of steepness. In the JER at [18] both experts agree:

“that the lot size of 966sqm for Lot 2 [2] is 34sqm below the minimum area per lot identified of 1000sqm for lots with a slope of 16-20% under Table 2 of clause 2.4.3.2 of Chapter 2.4 of the DCP. The SOFAC states that the slope on Lot 1 (the lot that conceptually shows a dual occupancy) is 18%”. (Exhibit 3, JER Planning, p 4).

48. It must be noted that during the hearing, the Applicant opined in Applicants Outline Submissions (AOS) at [125] the Councils calculation of slope was incorrect and that slope of Lot 1 as per the Class 1 Application, (Exhibit A) the survey plan prepared by C&A surveyors identifies the average slope of Lot 1 to be 15.8% and the slope average of Lot 2 as 8%. However, based on the agreement of the experts in the JER at [18] it is accepted that Lot 1 has a gradient between 16-20% and the Lot 2 has a gradient of 0-10% (Applicant Written Submissions in Reply, 07 March 25, par 48). Slope is more pronounced on the proposed Lot 1 and is largely the focus of this first part of the contention.

49. The Applicant contends that the width provision in Table 2 increasing the lot size has no effect as it is inconsistent with the minimum lot size control in the LEP s 3.43(5) of the EPA Act, (AOS at [131]). The Court accepts the statement by Mr Betros:

“Lot size requirements in the LEP take precedence over the larger lot sizes referenced in the DCP”. (Exhibit 3 JER Planning, p 7, [34])

50. The Applicant further counters later in the AOS at [140], that:

“The correct legal test is not whether proposed lot 2 is consistent with the ‘the 15m minimum lot width prescribed’, but rather whether the proposed lot is consistent with the objectives of clause 2.4.3.2. For abundant caution, the particular is addressed on the basis of a general merit assessment of the proposed site width of lot 2.”

51. The objectives of cl 2.4.3.2 Slope are:

▪ To ensure that lot size takes account of the natural features of a site and locality

▪ To ensure that geotechnical constraints are taken into consideration

▪ To minimise the adverse impacts of subdivision on the environment

52. The Applicant continues to assert that the proposed subdivision meets the objectives for cl 2.4.3.2 for slope, despite both Lot 1 being 34m2 undersized in area and 1.5m short in width and Lot 2 not meeting the width requirements in Table 2. As outlined in Exhibit 3, both experts agree on the following:

53. [17] “the frontage of 11.9m to Sunnyhills Terrace is inconsistent with the minimum width (in any direction) of 15 metres identified in Table 2 of clause 2.4.3.2 of Chapter 2.4 of the Central Coast DCP 2022”. (Exhibit 3 JER Planning, p4).

54. [20] “that neither the LEP nor the DCP stipulate minimum lot frontages for dwelling houses or dual occupancies as such references are limited to Table 2 under Chapter 2.4.3.2 of the DCP”. (Exhibit 3 JER Planning, p4).

55. The Court notes there is no site width control in the CCLEP 2022, and whilst there is guidance controls provided in the CCDCP 2022 in cl 2.4.3.2, Table 2 and Table 3, these are not CCLEP 2022 requirements and should be applied flexibly.

56. On a general merits assessment, and applying the CCDCP 2022 controls, the width of the Lots as a constraint due to irregular lot shape of the Site could be acceptable if it were the only limitation. However, this Site is further complicated by the proposed stormwater drainage and existing utility easements on its northern boundary, which brings us to the second part of this Lot width contention.

57. Given that it is established by the experts in the JER at [17] and [18] that neither Lot 1 or Lot 2 complies width requirements in the Table 2 of 2.4.3.2 of CCDCP 2022, the Site is further constrained by the existing easements.

58. On proposed the Lot 1 the easement width ranges from 1.35m to 4.26m, or up to 18% of the width of the lot, and on proposed Lot 2 from 2.57m to 4.26m, or 25%—40% of the width of the lot (Exhibit 1, SOFAC). Lot 2 is also further inhibited by the requirement for a stormwater easement to drain Lot 1 towards Sunnyhills Terrace, the width of 0.9m or 1.5m being also disputed in this case. These easements undoubtedly further limit the developable area in both proposed lots, with the impact being more profound on Lot 2.

Desired Future Character

57. Cl 2.4.3.7 of the CCDCP 2022 relates to subdivision Urban Design. The objectives of this clause are:

▪ To ensure quality design is achieved through subdivision ensuring allotments promote attractive amenity and visual privacy

▪ To ensure subdivision design is consistent with any established streetscape and the desired future character of the precinct / area

58. Council contends that that proposed subdivision is inconsistent with requirement cl 2.4.3.7(f) which states:

“In established areas, the design preserves the essential character of the locality while providing for contemporary housing needs in keeping with community expectations”.

The Applicant proposes that the subdivision design, distinct from building design, is consistent with established streetscape and desired future character of the area (AOS,3 March 2025, [170]). The Applicant refers to Exhibit G which is a cadastral map of the locality displaying the existing subdivision pattern (refer to Figure 8).

Figure 8 – Cadastral Map of the locality with site shown as Lot 17 (Source: Exhibit G).

59. On examination of Exhibit G and the Site inspection by the Court, lots fronting Stornaway Crescent generally have a consistent depth and width, and the proposed Lot 1 could be considered consistent with this pattern. In comparison, the various lots on Sunnyhills Terrace, are in a cul-de-sac configuration, contain a variety of shapes and widths ranging between 3m-18m, which was described by the Applicant as “eclectic”. The Court observed that if Lot 2 were to be permitted, it would be one of the narrowest blocks on Sunnyhills Terrace, with only narrower blocks being used as access points for battleaxe lots.

60. In the JER, the Applicants expert Mr Betros at [48-49] is of the opinion:

48 “that the proposed subdivision represents the orderly and economic use of land, which is consistent with the Objects of the EP & A Act, 1979. The provision of an additional lot represents a sustainable use of this large land parcel and allows for potential additional housing in an established urban area.

49. AB is of the opinion that the subdivision would not generate any unreasonable external impacts on neighbouring properties to the north or south in relation to visual bulk, overshadowing, privacy, or view loss.”

61. Council maintains in the Exhibit 1, SOFAC under the contention relating to insufficient information there is a lack of consideration of the site and contextual analysis (Exhibit 3, JER Planning, p 18, [83]). During cross examination, Ms Englund, confirmed that her concerns relating to the proposed subdivision were specifically connected to the proposed Lot 2 on Sunnyhills Terrace. As outlined in Exhibit 3:

“73. RE maintains that the development has had no regard for the character of the locality, as emphasised by the lack of site/context analysis or any consideration of CCDCP controls. Further, there is nothing in the application that demonstrates that the proposal is compatible with surrounding built form, with no consideration of existing or desired character or the provisions of CCDCP.”

“74. In RE’s opinion, the resultant form of any dwelling on Lot 2 would be completely at odds with the character of the locality, which is required to be preserved pursuant to clause 2.4.3.7(f) of CCDCP and taken into consideration by clause 2.17.1 of CCDCP.”

62. The proposed subdivision would create a narrow lot on Lot 2 and when considering the easement constraints, it is highly likely that only a narrow dwelling could be created. Such narrowness of a built form with vacant space left adjacent to it and on piers with raised subfloors could create an unusual outcome and if approved this gives high likelihood any house would be out of character. As desired future character for the Central Coast Council area is not defined in the CCLEP 2022 or CCDCP 2022, and without any analysis provided by the Applicant or Council, the Court cannot be assured that the proposed subdivision meets the objective of cl 2.4.3.7 second bullet point: To ensure subdivision design is consistent with any established streetscape and the desired future character of the precinct / area.

Design of proposed future dwellings

63. Both parties relevantly draw the Courts attention to the subdivision Planning Principle in Parrott v Kiama [2004] NSWLEC 77 which asserts that there a specific circumstance where subdivision applications should require detailed plans for future buildings and ensure that potential impacts are considered and potentially mitigated during the planning process.

64. Specifically in Parrott v Kiama [2004] NSWLEC 77 at [16-18]:

“16 The applicant’s response is that the subdivision by itself does not create an impact. Whatever impact a future dwelling might create can be assessed at the time when there is an application for a dwelling on the allotment. While the applicant has provided details of a possible dwelling for the proposed allotment, it does not accept a condition restricting future buildings to the envelope of the possible dwelling. Without such a condition there is no purpose in assessing the impact of the possible dwelling.

Planning principle

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.

18 In this case the proposed battleaxe allotment is not small, though it is much smaller than its neighbours. It is environmentally sensitive because of its extreme steepness. It is in a location where the adjoining allotments all have rear yards and thus it breaks the established building line. Any future building on it will be closer to the Stafford Street properties than other houses are to their southern neighbours. The likelihood of adverse impact is high. This is not to say that an acceptable dwelling cannot be designed on the allotment, only that it would require a higher than usual level of design skill. The design of the future house (at least the outline design) is not a matter that is appropriately left till later.”

65. In the present case, the Planning Principle is engaged in that design of the future dwelling or at least the outline design is not appropriate to be left to later. The constraints on this Site of varying slope, varying lot width, existing and proposed easements, essential services, overland flow and vegetation removal are such circumstances that lend itself to the consideration of the proposed architectural plans and built form which the Applicant has put forward in Exhibit C. Yet, many questions remain unresolved in addressing controls in the CCDCP 2022, and whilst the Applicant contends this is a matter of ‘finessing’ the design of the future proposed dwelling which would be subject to a separate development application, it further demonstrates that this is a challenging Lot to develop even without subdivision. Whilst there was significant discission between the experts on this matter, a detailed analysis of the built form is not considered further in this subdivision application, as it would be subject to a separate DA and also due to the jurisdictional matters not being satisfied earlier in relation to flooding and essential services.

Contention 4 – Tree removal

66. State Environmental Planning Policy (Biodiversity Conservation) 2016, Ch 2, cl 2.6 states that vegetation clearing in non-rural areas requires a permit of approval granted by the Council. The Amended DA seeks consent for the removal of 9 trees. As outlined in Arboricultural Impact Assessment (Exhibit K and Exhibit 7), four are low retention value, three are medium retention value, and two are street trees of medium retention value.

67. Council raised contention with the potential loss of street trees on Stornaway Cresent and that this was contrary to the provisions of cl 2.4.2.4(d) of the CCDCP 2022, which states that existing street trees must remain where infill subdivision is proposed. Noting the former history of the site as a Council Reserve and in order for there to be vehicular street access to the Lot from Stornaway Crescent, some tree removal would undoubtedly be required. The Applicant’s concept proposal dwellings consolidated the access driveways in the one location on Stornaway Crescent, which would limit the number of individual tree removal.

68. Council further contended that the proposal fails to meet the objectives of the CCDCP 2022 cl 2.4.2.6 which is to incorporate existing vegetation on the site into the subdivision landscape design. The Applicant provided the Amended Essential Services Plan for Stormwater Management (Exhibit N—Essential Services Plan Revision E Drawing 108) to avoid impacts on trees and proposed hand digging/excavation in certain locations under an arborist’s supervision during construction, to minimise impacts on the tree protection zones.

69. Overall, the Applicant has proposed tree removal largely in the centre of the Site and retained vegetation on the fringes of the property boundaries, which could be considered to minimise visual impacts and amenity on neighbouring properties and thereby addressing some of the concerns raised by the objector. To provide some form of suitable development on this site the Court could be satisfied that the proposed level of tree removal and proposed management would be acceptable.

Contention 5

70. In the Councils AOS at [41], the issues originally outlined in the SOFAC are largely resolved however Council wished to express concern regarding lack of consideration of the CCDCP 2022 of site contextual analysis and the reliability of the Shadow Diagrams (Exhibit 3, JER Planning, p 18 [85]). These documents have been considered above in Contention 3.

Outcome of the appeal

71. For the reasons set out above, it is acknowledged the Site may permit some form of infill residential development, however the proposed subdivision pattern currently presented fails to satisfy the jurisdictional prerequisites of cl 5.21 flooding and cl 7.6(d) essential services for stormwater management in the CCLEP 2022. With reference to s 4.15(1) of the EPA Act, I am not satisfied the development application should be approved due to the likely impacts of proposed subdivision.

72. The Court orders that:

73. The appeal is dismissed.

74. Development Application DA/1409/2023, which seeks development consent for the Subdivision of Lot 17 in Deposited Plan 262327 at 2A Stornaway Crescent, Berkley Vale, into two (2) Torrens title lots of 451m2 and 966m2, construction of stormwater and sewer connection and removal of nine (9) trees is determined by refusal.

75. The exhibits are returned, except Exhibits A and 1 which are retained.

L Coetzee

Acting Commissioner of the Court

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Endnotes

It should be noted that the objective in bullet point two is not applicable to this Amended DA.

This is a typo and should be corrected as Lot 1 not Lot 2 – confirmed with parties on 05/05/25