Conclusion and findings
43For consent to be granted, I must be satisfied that the written request from the applicant to vary the development standard for minimum lot size adequately addresses the matters required to be demonstrated in Clause 4.6(3) of the LEP, that is, that compliance with the the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. In addition, I must be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. This is a condition precedent to the exercise of statutory power.
44Having regard to the evidence, I am not satisfied that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case or there are sufficient environmental planning grounds to justify the lot sizes sought. That is because I do not consider the application is consistent with the objectives of the development standard. I accept that the development would satisfy the objectives of the R2 zone.
45It is common ground that 82% of the original lots in the vicinity of the site have been subdivided into 2 or 3 lots with only two instances where consent has been granted for four lots, both prior to the making of the LEP. I do not consider that it is necessary for all of the lot boundaries to be in alignment for the pattern, size and configuration of the lots in the locality to be consistent. What is evident is that where lots have been subdivided, the majority comply with the minimum lot size, all are of battleaxe configuration and where only two lots have been created, and the majority of those rear lots are capable of further subdivision to be compliant with the development standard and pattern of development. I place little weight on the shape and size of the lots fronting Veterans Parade and Ennerdale Crescent due to the fact that they appear to form part of a separate original subdivision and are conventional lots with street frontage rather than battleaxe lots. They were also approved a number of years prior to the LEP, consistent with the neighbour's evidence who indicated he had lived at the site for some 30 plus years.
46For these reasons, I do not consider that subdivision of the site into four lots is consistent with the pattern, size and configuration of existing lots in the locality.
47Objectives b, c, d and i are not relevant to the case. Objective e requires that appropriate bush fire protection measures are provided on land that has an interface to bushland. The site has an interface with bushland, that being Lantana Avenue Reserve, a reserve identified within the council's Generic Bushland Reserve Plan of Management. The proposed development does not make provision on the land to which the application relates but rather relies on the use of an adjoining public reserve for that purpose. The fact that the area required may currently be mowed by neighbours to a state that would meet the RFS requirements of an APZ does not mean that the objective is achieved. It would be possible to subdivide the land in a different manner and achieve the objective with the bushfire protection measures provided within the land. Whilst I accept that a four lot subdivision would not be possible, I consider the fact that the APZ cannot be contained within the site as a reason not to depart from the development standard for minimum lot size.
48Whilst relevant to the application, objectives f and g could be better addressed through the redesign of the subdivision allowing for retention of existing trees 10m clear of any dwelling to protect the trees that are contiguous to the bushland reserve so as to retain the natural landscape features on the site. There is no consistent building line along Lantana Avenue so 3 lots would provide for a larger front lot, greater setback and contain the APZ on the site. I have bot been satisfied that there are sufficient environmental planning grounds to justify contravening the development standard.
49Having found that the objection to the development standard is not well founded, the precondition to the grant of consent is not met and the application must be refused.
50If I am wrong in the conclusion that I have reached on the jurisdictional test arising under clause 4.6 of the LEP, I should proceed to a merit assessment so that, if there were to be a successful appeal on my jurisdictional assessment, the parties could consider the outcome of that merit assessment to assist in ensuring that there could be a just, quick and cheap resolution of the matters as might arise on the remitter so as to facilitate achievement of the objectives of s 56 of the Civil Procedure Act 2005.
51In relation to the manner in which the areas of the allotments have been calculated, I do not consider that it is appropriate to exclude the nib at the tip of proposed Lot D. That nib is required to provide for vehicle access to the allotment and therefore is excluded from the calculation consistent with the terms of clause 4.1(3A) of the LEP.
52Mr Vescio prefers to apply the provisions of the Australian Standard for passing bays rather than the DCP. Whilst I accept that the standard is a relevant planning consideration, the DCP should be a focal point of my assessment. Consistent with the decision of the Court of Appeal in Botany Bay City Council v Premier Customs Service Pty Ltd [2009] NSWCA 226, it is not appropriate to apply an alternate view as to the appropriate general policy rather than that embodied in the DCP. For the laybacks adjacent to the proposed garages to be taken into consideration as passing bays, they too would be deleted from the site area calculations because they are required for vehicle access.
53Accordingly, I accept the areas as calculated by Ms Laidlaw.
54I agree with the experts that the proposed building envelope and footprints to be protected by covenants would provide certainty in terms of built form and that form would be satisfactory however, I have not been satisfied that the provisions of SEPP2008 would not override those covenants. The parties had requested that if the appeal turned on this issue they be provided an opportunity to further address it however, given my decision in relation to the jurisdictional issue, this is not required.
55The primary difference in the evidence of the Bushfire experts is the extent to which an APZ is required within the adjoining reserve. They both agree that the location of the proposed building footprint on proposed Lot A necessitates the APZ to extend beyond the site. Mr O'Toole says the area only extends some 6.2m into the reserve and occupies an area of approximately 57sqm. Mr Short says the zone extends 20m into the reserve and therefore occupies a considerably larger portion of the reserve.
56Appendix 2 of PFBFP includes assistance in determining APZs and establishes a procedure to be followed. Mr O'Toole applies that procedure to his assessment, adopting the rainforest category. Both experts agreed that ground truthing the vegetation is preferred over using vegetation databases however they have drawn different conclusions. I have particular regard to the provisions of A2.3(a) of Appendix 2 which states: Where a mix of vegetation types exist the type providing the greater hazard is said to predominate......Consideration is to be given to the understorey as this may contain the greater mass of fuels.
57Having regard to the evidence and the site view, I consider that the most eastern portion of the reserve does not precisely fit either the definition of Rainforest or that of Wet Sclerophyll forest. That is because the area does not comprise a close and continuous tree canopy (rainforest) and whilst its canopy is open, it is not dominated by tall eucalypt species. The understorey conditions are common to both. For that reason, as required by the procedure, the category of greater hazard should be applied and therefore an APZ of 20m would be required to extend within the council reserve.
58I accept the evidence of Mr Short that the reserve is not a remnant as it is appropriate to take into account the whole of the reserve, not just that portion required for the APZ.
59Having regard to the provisions of PFBFP, I note that the general principles of the document include that the bush fire protection measures are to be contained within the overall development and not on adjoining lands, other than in exceptional circumstances. It also recognises that consideration of such measures are most appropriate at subdivision and construction stages. The exceptional circumstances for APZ are detailed at Part 3.3 of the document and for those circumstances to apply, the following principles should be demonstrated:
- The existing form of development will obtain a better bush fire risk outcome than if the development did not proceed (eg through increased construction standards);
- The building line should be no closer to the hazard than neighbouring properties;
- The extensions should be no closer to the hazard than the existing building footprint;
- An upgrade of existing facilities may be required; and the proposal is an infill arrangement and site constraints do not allow APZ requirements to be met.
It goes on to say an increase in residential densities is not, by itself, considered an exceptional circumstance.
60Consideration is also given in PFBFP of the use of adjoining land for APZs. On page 13 it states:
Easements should not be considered where the adjoining land is used for a public purpose, where vegetation management is not likely or cannot be legally granted (eg National Park, council bushland reserve, SEPP 14 or SEPP 26, critical habitat). Existing easements for power and other services will be considered on their merits.
61I am not satisfied that the fact that the reserve in the location of the necessary APZ is currently mowed by owners of adjoining land is an exceptional circumstance for allowing the APZ to extend onto council land. Whilst I accept that the council has some form of obligation to carry out works required under the WPBRMP, it is clear from the PoM that the area is a medium priority in terms of budget consideration and therefore no guarantee can be given that funds will be available to maintain the area as the APZ by the council.
62Nor do I consider, given the council's planning documents and the PFBFP publication, that it is appropriate to grant an easement to ensure that the APZ is maintained for the life of the development. The development is capable of providing the requisite APZ within the site and that should occur even if that means that there are less lots created.
63The council's planning documents are consistent in its case that the site must accommodate the necessary bushfire protection measures. I have addressed the objective of the minimum allotment size and determined that standard should not be varied. Part E7 of the DCP provides specific controls for development on land adjoining public open space and has the following objectives:
- To protect and preserve bushland adjoining parks, bushland reserves and other public open spaces.
- To ensure that development responds to its adjacent surroundings to preserve and enhance the natural qualities of the environment.
- Development on land adjoining open space is to complement the landscape character and public use and enjoyment of the adjoining parks, bushland reserves and other public open spaces.
64The requirements of the clause seek to:
(1)Development on land adjoining public open space is to complement the landscape character and public use and enjoyment of the adjoining parks, bushland reserves and other public open spaces.
(2)Public access to public open space is to be maximised.
(3)Buildings are to be located to provide an outlook to public open space, without appearing to privatise that space.
(4)Development is to provide a visual transition between open space, bushland reserves or other public spaces and buildings, including avoiding abutting public open space with back fences.
(5)Development is to protect views to and from public open space.
(6)Development is to provide buffers for bushfire protection on private land, not on public land.
(7)If the adjoining parks, bushland reserves or public open space contain bushland, development is not to threaten the protection or preservation of the bushland.
(8)Development should be designed to maximise opportunities for casual surveillance of the public open space.
(9)Development is to utilise landscaping or existing landscape elements to screen development.
65The proposal is inconsistent with the council's planning controls in relation to the use of public land for the private purpose of the APZ. It does not complement the landscape character and public use and enjoyment of the adjoining bushland reserve, the area currently mowed by neighbours and proposed to be the subject of the applicant's easement privatises that space and the driveway location does not provide a visual transition between the bushland reserve and buildings. Importantly, it does not provide buffers for bushfire protection on private land but relies on public land. It has been designed to maximise opportunities for casual surveillance of the reserve but does not utilise landscaping or existing landscape elements to screen the development.
66For these reasons, the application does not warrant consent on a merit assessment, even when regard is had to the fact that the owners of adjoining property currently manage part of the reserve.
67The Orders of the Court are:
(1)The appeal is dismissed.
(2)Development Application DA 2013/1382 for demolition of existing structures and subdivision of Lot 1 in Deposited Plan 8438, No 87 Lantana Avenue Wheeler Heights into four lots is refused consent.
(3)The exhibits, other than exhibits A, H and K, are returned.
Sue Morris
Commissioner of the Court