Short v Wollongong City Council

Zhang v Canterbury City Council [2001] NSWCA 167 CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Parramatta v Kiama Council [2004] NSWLEC 77

DATES OF HEARING: 16/01/2009 and 17/03/2009

APPLICANT Mr B. Short, litigant in person

LEGAL REPRESENTATIVES: RESPONDENT Mr Cottom, solicitor of Kells The Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10987 of 2008 Bryce Short v Wollongong City Council

JUDGMENT This determination was given extemporaneously and has been edited prior to publication.

1 This is an extempore decision in the matter of Short, Bryce v Wollongong City Council appeal No. 08/10987. The matter was originally before myself as a s 34 Conciliation Conference. The parties agreed to the making a binding decision under s 34(4)(b)(i) of the Land and Environment Court Act 1979, while having regard to the evidence presented at the initial conference and site visit. The site and proposal 2 I had the benefit of viewing the subject site, No. 11 Outlook Drive, Figtree, Wollongong on the 16 January 2009.

3 The proposal, DA 2008/719 is for a 2 lot "Torrens Title Subdivision," which can be summarised as follows: (a) Subdivision of the existing lot in to two separate lots. (b) The lot front to the street comprising the existing dwelling will be 24 metres m deep by 18 metres m wide approximately 450 square metres. (c) Rear allotment, will be approximately 36 metres m deep by 18 metres m - approximately 655 square metres.square metres 4 Both of the proposed lots have an area that conforms to the minimum requirements of the Wollongong Local Environmental Plan 1990, clause 13B, zone 2(a).

5 The application does not include specific building, access, drainage or site preparation works, but the applicant, who is self represented, has produced a concept dwelling design for a 10 metre m x 15 metre m building area in the rear allotment.

6 The applicant also seeks consent to use the newly constructed driveway along the southern boundary of the property and part of the access to the proposed rear allotment.

7 The extent extant driveway is subject to a separate application for a building certificate with the council. This application has not yet been determined. The council agreed that if consent is to be given that it would be necessary that a deferred condition of consent be made with respect to the issuing of a building certificate for the driveway, so as to legalise its construction and use. 8 The subject site is located along the ridge of the Illawara escarpment and consequently is sloped steeply towards the east. The land is RL 57.72 at its south-western corner at the edge of the footpath adjacent to Outlook Drive and falls some 20 metres m to 39.85 metres m at its eastern rear boundary.

9 The driveway has been formed across the drainage easement for the property along its southern boundary all and terminates after a ~ 25 metre is in a turning area to the rear of the existing dwelling. The proposal will require the driveway to be extended to the east to a length of a ~ 50 metre m onr completion of a the building of a house on the rear allotment.

Relevant legislation, planning instruments and policies 10 The Wollongong Local Environmental Plan 1990 zones the site 2(a) and permits the subdivision. However, permission is contingent on any application meeting the threshold criteria in 13B(a) which that states: Consent is not to be granted to the subdivision of land within a zone specified in Column 1 of the Table to this clause if: (a) The consent authority is not satisfied that the subdivision will create a lot on which a dwelling-house will be erected, and 11 The Wollongong DCP No. 4749, Residential Development C(DCP 49), is also relevant since it provides the controls that determine whether or not if a subdivision can create a lot upon which a house can be erected that fits within its controls and/or meets its objectives, bearing in mind the NSWCA decision in Zhang v Canterbury City Council [2001] NSWCA 167. The sections of the DCP 49 of particular relevance are as follows: o 6.3 -- Land Cut and Fill o 7.1 -- Allotment size - in particular the items covering driveway access and gradients and restrictions on two storey dwellings on battle axe allotments. o 7.2 -- Natural landform protection - in particular that a development application must have regard to the existing topography. o 7.3 - Site Access - that safe and adequate vehicle access is provided. o 10.3 - Building height - in particular the maintenance of the natural setting and height controls7.3 - Site Access - safe and adequate vehicle acoustic provided. 12 The list of contentions were reduced substantially between theis s 34 conference and this hearing. The three principal issues that remained were provided in the Council's Statement of Facts and Contentions: i. The proposal is inconsistent with the objectives and requirement of s 7.2 of DCP 49 in that the subdivision and the concept dwelling for future development of the newly created lot will not sympatictically sympathetically relate to the natural features of the site, particularly topography. ii. The proposal is inconsistent with the objectives and requirements of section 7.3 of the DCP 49 in that safe and adequate vehicle access is not provided to the rear allotment. iii. The proposed development in is contrary to the public interest because if approved, it would establish an undesirable precedent for similar inappropriate development on land in the locality with significant topographical constraints. 13 In making my decision, I am obliged to have regard to the relevant objectives as set out in the Council's DCP. I also have regard to these objectives in the context of the Court of Appeal's decision in Zhang v Canterbury City Council [2001] NSWCA 167 (June 14 2001) in which it was determined that the provisions of the DCP are to be considered as a "fundamental element" or a "focal point" of the decision making process. The provisions of the DCP are directly pertinent to the application are entitled to significant weight in my decision- making process but are not necessarily in themselves absolutely determinative.

14 If the proposal does not meet all of the DCPs requirements, I may still grant consent after a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79c of the Environmental Planning and Assessment Act, 1979, if there are reasons to render it acceptable. Natural Topography of the site 15 The proposed concept design will mean that the rear allotment will need to undergo cut and fill in excess of the development standards (600 mm) as stated in the DCP. While it is appreciated that much of the cut will be "hidden" within the garage, it exceeds the DCP 49 6.3 standard clause 6.3 by 900 mm.

16 Consequently, the objectives of minimising such engineering and landscaping works and having a development that follows the natural controls of the land are not met by the current proposal.

17 Then This exceedence of the DCP control is a significant non-compliance, which results in large areas appearing as a 2-storey dwelling i.e. from the northern, western and southerly southern view aspects aspect. This is contrary to section clause 10.3 of the DCP 49, which states that battleaxe lots in 2(a) residential zones should be single storey. 18 The cut and fill for the concept design also results in approximately 20 % or 15 square metres.square metres of the ceiling height exceeding the DCP control (10.3) for a maximum ceiling height of 4 metresm. Consistent with the findings in relation to DCP clause 6.3, the proposed design is not sympathetic to the sites natural topography of the site and it does not meet the objectives in of DCP 49, clause 10.3. Importantly, I was not shown if any possible future development might be able to be sympathetic to and address the site constraints (i.e. topography) either through a different design or are one that used a split level solution as is encouraged in the objectives of DCP clause 10.3 and also by the council at the s 34 conference. Safe vehicle access 19 The site's steep topography provides for different difficult access to the site. The extant driveway exceeds the council's maximum desirable gradient of 20 % for at least 22 metres and of this driveway some 40% exceeds the maximum grade of 28 % for access to individual allotments where turning movements are not expected.

20 The Australian Standard AS2890.1 maximum recommended grade is 25 %, but the Wollongong Council DCP 49 recognises that this may not always be practical, hence, its provision for a maximum grade of 28 %. However, the DCP maximum of 28 % is for a single allotments and where no turning movements are expected. Both of these factors would be breached in the proposed concept proposed indicated here. There is no expert evidence before me that states that the extant driveway would be suitable or safe for a subdivision design with turning motions. The driveway's safety and suitability for a single allotment design does not form part of this matter and will be considered separately by the council as part of the applicant's building certificate application. 21 I am not satisfied that the proposed use of the driveway or its safety or functionality has been shown to be adequate or absent of safety concerns.

Public interest 22 The council also contended that the approval of this subdivision proposal would create an undesirable precedent. The applicant in his amended Statement of Facts and Contentions stated that such an outcome was unlikely because the surrounding properties are not of a similar size and are characterised by boundary to boundary developments.

23 However, Mr Meade (the Council's expert Town Planner) stated in his evidence (Exhibit 3) stated that properties 1, 3, and 13 of Outlook Drive have lots areas 7 >1000 square metres.square metres, the minimum needed for subdivision.

24 In respect of precedence I refer to: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 (17 May 2002), in para [28] Justice Lloyd made the following relevant statement: 28. ....As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. 25 Consequently, it would not be inappropriate for one me to consider precedent, although I note each application is to be considered on its merits. In this appeal it is clear that this proposal would result in a driveway and concept design that exceeds significantly Australian Standards and the council's DCP, respectively. The Court needs to be satisfied that non-compliant proposals will result in safe access, and that they are that meets the objectives of the controls and is are sympathetic to its topographical constraints. This application does not achieve comply either with any of these items and its approval would in my view, create an undesirable precedent as well as an inappropriate erosion of safe and good planning principles and objectives. Findings 26 In Parramatta v Kiama ` Council [2004] NSWLEC 77, Senior Commissioner Roseth provided a planning principle for subdivision at para [17 and 18]}. [17] 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] The design of the future house (at least the outline design) is not a matter that is appropriately left till later.

27 I have adopted this planning principle in my circumstancesconsiderations.

28 In effect, this planning principle in is saying that if there are sufficient constraints that may limit a development at a site, there needs to be a specific house design (inter alia) that constraints future development. The provision of such a design where there are significant environmental constraints as there are a t the sufficient subject site, will provide security surety for the decision maker that an approval of for subdivision can be matched in the future by a development that meets the objectives of the DCP, satisfactorily.

29 In this application, the expert evidence is not only uncontradicted but it has shown that there are several items that are contrary to the DCP, which if approved would present a significant departure from the its objectives.

30 In particular, it is worth noting that the applicant was asked specifically to prepare a concept building design that demonstrated any future development could be achieved within the constraints of the allotment's topography. This has not been achieved and accordingly the appeal must fail. 31 In addition, it is clear that in the absence of expert traffic evidence on behalf of the applicant to contradict the findings of Mr Lee (Exhibit 4), I can draw no other conclusion that the steepness of the drive poses a risk to: o Pedestrians traversing the road both up and down - this would be a particular issue for elderly or young children who are less physically adept. o The risk or likelihood of residents scraping the bottom of their vehicles or even getting stuck at the point of the driveway and cross over. o Poor visibility for residents entering and exiting the site. 32 For the above reasons the appeal is dismissed and the application refused. Orders 1. The appeal is dismissed. 2. The development application to subdivide Lot 54 DP 24401, 11 Outlook Drive, Figtree into two allotments is determined by refusal. 3. The exhibits are returned.

      Dr Mark Patrick Taylor
      Commissioner of the Court
      ljr

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.