Tenhave v Wollongong City Council

Parrot v Kiama Council NSWLEC 77 CASES CITED: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279

APPLICANT Mr R Tenhave LEGAL REPRESENTATIVES: RESPONDENT Mr J Reilly, solicitor of Wollongong City Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Commissioner: This is an appeal against the refusal by Wollongong City Council (council) of a development application (DA-2009/713) to subdivide lot 2558 DP845702, known as 49 Taminga Crescent, Cordeaux Heights, into two lots (site). 2 The main issue between the parties relates to the size and configuration of the proposed lots and whether they are consistent with other lots and the character of the area. Site and locality 3 The site is located on the eastern side of Taminga Crescent. It is trapezoidal in shape, with an area of 1,576sqm. The front of the site is occupied by a split level two storey house with driveway access along the northern boundary. The site falls steeply to the rear from RL 98m (east of the dwelling) to below RL 88m. The locality is a recent subdivision with large houses on large lots. The proposal 4 The application is to subdivide the site into two lots being: * Lot 1: with an area of 1008sqm. The proposed lot includes an area of land which contains the existing dwelling to the west of lot 2, a narrow strip of land that adjoins the southern boundary of lot 2 and links to an area of land that adjoins the eastern boundary of lot 2. Lot 1 is burdened by a right of carriageway and drainage easement. * Lot 2: with an area of 568 sqm (543 sqm excluding the service handle). It is benefited by a right of way, and burdened by a restricted building zone and an easement for drainage and sewer main. The proposed building envelope (10m x 15m) is sited towards the western end of the lot and an elevated platform for two cars (6mx6m) adjoins the north western part of the lot. Planning Controls 5 The site is zoned 7(c) Environmental Protection Residential under Wollongong Local Environmental Plan 1990 (WLEP 1990). 6 Clause 9(3) of WLEP 1990 provides: Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 7 The objectives of the 7(c) zone are: (a) to cater for limited residential and village development in selected areas possessing special environmental qualities or that may be affected by environmental hazards, and (b) to allow some diversity of activities that will not prejudice achievement of the objective referred to in paragraph (a) or detrimentally affect the environmental quality or character of the locality or the amenity of any existing or proposed development in the locality. 8 Clause 10(1)(a) of WLEP 1990 requires consent for subdivision. And cl 12(1) permits a maximum floor space ratio (FSR) of 0.3:1 for a building in the 7(c) zone. 9 Wollongong Local Environmental Plan 2009 (WLEP 2009) was gazetted on 26 February 2010 after the lodgement of the development application. Clause 1.8A provides: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not finally been determined before that commencement, the application must be determined as if this Plan had not commenced. 10 WLEP 2009 is therefore a proposed instrument and a relevant consideration under s79C(1)(a)(ii) of the EPA Act. The parties disagree on the weight to be given to WLEP 2009 which is discussed below. 11 Under WLEP 2009 the site is zoned E4 Environmental Living. The objectives of the zone are: * To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. * To ensure that residential development does not have an adverse effect on those values. 12 Clause 2.6(1) permits subdivision with consent. 13 Clause 4.1 controls the minimum subdivision lot size. The objectives of the clause are: (a) to control the density of subdivision in accordance with the character of the location, site constraints and available services, facilities and infrastructure, (b) to ensure lots are of a sufficient size and shape to accommodate development. 14 Clause 4.1(3) specifies a minimum lot size of 1000sqm for the site. Clause 4.1(5) excludes the access handle from the area of the lot. 15 Wollongong Development Control Plan 49 - Residential Development (DCP 49) is relevant. It applies to all residential development and includes provisions for infill residential subdivision including a minimum building envelope of 15m x 10m (s 7.1) and a minimum site area of 550sqm for battle axe allotments (s 7.1). 16 Section 8 of DCP 49 provides requirements for subdivision of Environmental Protection zoned land including a buildable area of 350sqm and a total lot area of not less than 650sqm (s8.1). Evidence 17 The Court visited the site and heard evidence from a number of residents who were principally concerned that the subdivision did not comply with the minimum lot size and that the development of a dwelling on lot 2 would be uncharacteristic of the area. They stated that the area was predominantly large lots and that houses were built close to the road near the ridge with a large green strip at the rear. The outlook from their properties was predominantly to trees and open space. A dwelling at the rear of the site would impact on their outlook and their enjoyment of the area. 18 Ms V Lee, planner, provided a Statement of Evidence for council. She was not required for cross examination. The applicant did not provide any expert evidence but addressed the contentions raised by council and Ms Lee's evidence in the Statement of Facts and Contentions in Reply and through submissions. 19 The key disagreement between the parties is whether the proposed subdivision is consistent with the character of the area. Council's evidence 20 Ms Lee considers that the proposed subdivision is not consistent with the objective of the 7(c) zone in WLEP 1990 to cater for limited residential development. In her opinion the proposal also does not meet the objectives or controls for subdivision in the Environmental Protection zone in s 8 of DCP 49. 21 Ms Lee considers the characteristic elements of the 7(c) zone include: * significant vegetation, particularly at the rear of the properties; * larger lots; * dwellings located on or near the ridge line rather than down the slope; * development that generally follows the topography; * significant private open space for vegetation. 22 Ms Lee states that the proposal is inconsistent with the character of the area as it is smaller than the surrounding lots; requires modification to the topography for the driveway and parking space; results in a dwelling in close proximity to the existing dwelling on the site which would be located down slope from other dwellings with limited open space and unacceptable visual impact. 23 Ms Lee states that lot 2 is 540sqm, excluding the access handle, which does not comply with the minimum required area for battleaxe allotments of 550sqm in s 7.1 of DCP 49. The total area of lot 2 is 568sqm and its buildable area is about 340sqm, however, when the restricted building zone is excluded this is reduced to about 150sqm. Ms Lee considers these non compliances with s8.1 of DCP 49 do not meet the objectives for the controls. 24 Ms Lee also considers the irregular configuration of Lot 1 to be uncharacteristic as part of lot 1 is "isolated" from the existing dwelling by lot 2. Ms lee questions the accessibility, usefulness and amenity of this part of lot 1 and considers its purpose is to enable the existing dwelling to comply with the FSR of 0.3:1 in WLEP 1990. The applicant's evidence Mr Tenhave contested Ms Lee's evidence and submits that the proposal is consistent with the character of the area for the following reasons: * a large number of lots in the area in both the 7(c) and the 2(a) zone are between 600-800sqm; * the car access follows the topography and the car space is elevated about 3.8m above the ground; * there is limited removal of trees; * the existing dwelling would be elevated above any dwelling on lot 2 and therefore would look over it, as would other dwellings in the area; * the location of any dwelling at the rear of the site is appropriate and will not result in adverse visual impact. Any dwelling would be single storey, at a lower level than other dwellings and would be screened by existing vegetation; * the open space for both lot 1 and lot 2 is more than adequate. 25 Mr Tenhave submits that the proposal provides a buildable area of 350sqm as required under s8 of DCP 49. In his opinion, the requirement for a total lot area of 650sqm is unreasonable as density is controlled by FSR and there is no need to provide more land than necessary. The non compliance with the minimum lot size specified in s 7 of DCP is minor and could be adjusted to comply if necessary. 26 Mr Tenhave submits that the open space at the rear of lot 1 will ensure that the existing trees in this location are retained to provide screening of the site. The trees provide amenity for both lot 1 and lot 2 and for the surrounding residents. Findings 27 The area of lot 2 is slightly below the minimum requirement for battle axe lots in s 7.1 of DCP 49 and does not comply with the additional standard which specifically applies to subdivision of land in the 7(c) zone under s 8.1 of DCP 49 which requires a total lot area of not less than 650sqm. 28 The key question before the Court is whether, despite the non compliance, the proposal meets the objectives of the controls. In particular the objectives of s 8.1 which seek to:

Allow for subdivision of land which can accommodate a building envelope clear of environmental constraints Ensure that allotment sizes are compatible with existing allotment sizes in the locality. 29 The principle constraint of the site is the steepness of proposed lot 2. The applicant has demonstrated that access to the site, parking and a building area for a dwelling can be provided. However, from the information, it is not demonstrated that the environmental impacts that may arise from a dwelling on lot 2 will be acceptable. In particular the provision of parking for lot 2 requires an elevated platform 3.8m above ground. The 1m wide service corridor along the northern boundary could be landscaped however, this may not adequately screen the elevated structure from the rear open space of 51 Taminga Crescent. While this owner has not objected to the proposal, of itself this does not mean that the environmental impacts are acceptable. 30 A dwelling on lot 2 would be at a lower level than the existing dwellings in Taminga Place and could be screened by vegetation. However, it would still be visible from the other dwellings and would be in part of the site where a dwelling is not expected as no other properties have dwellings in their rear yards. Due to the constraints of the location, the design of any dwelling on the site would need to be carefully considered to mitigate any environmental impacts. 31 Mr Reilly, for the council, referred to the decision of Roseth SC in Parrot v Kiama Council NSWLEC 77 as being relevant to the circumstances of this appeal. At [17] the Senior Commissioner provides the following 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.

32 Further at [18] the Senior Commissioner concludes that: 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. 33 Adopting and applying this principle to the present case, I accept Mr Reilly's submission that the circumstances are similar. Given the steepness of the site and the size of the proposed allotment there is the potential for environmental impacts from a dwelling which cannot be adequately assessed from the information provided. It is uncertain whether the size of lot 2 meets the objective in s 8.1 to Allow for subdivision of land which can accommodate a building envelope clear of environmental constraints. 34 The size of lot 2 is smaller than any other lots in either the 7(c) or 2(a) zone. While there are a number of lots between 600 - 800 sqm the predominate size and character of the area is of large lots which provide significant areas of open space at the rear of the dwelling on the steeper lower slopes. Dwellings are located on the upper slopes near the street and there is considerable separation between the dwellings which front Taminga Crescent and those which front Mungurra Hill Road which provides a green strip of open space. The size of lot 2 is not consistent with this character and does not meet the objective in s 8.1 to Ensure that allotment sizes are compatible with existing allotment sizes in the locality.

35 The size of lot 1 meets the numerical requirement for subdivision in s 7.1 and s 8.1 of DCP 49 and the FSR of the existing dwelling complies with cl 12(1) of WLEP 1990. However, I accept Ms Lee's evidence that the configuration of lot 1 is uncharacteristic of the area. A significant part of lot 1 is isolated from the dwelling and due to the steepness of the site is unlikely to be used or to be perceived as part of this allotment. I acknowledge that the "isolation" of the lower part of lot 1 enables the existing landscaping to be retained which is of benefit to both lots and the surrounding area, however, it results in a dwelling on lot 1 which, while it technically complies with the FSR control, is located on only part of the site area. The existing dwelling relative to its adjoining site would be of a bulk, scale and density that exceeds what is envisaged under the FSR control. In particular, the rear deck of the existing house is setback about 1m from the western boundary of lot 2 and about 4m from the nominal building area. The potential separation and area of open space at the rear of the existing dwelling and between it and a dwelling on lot 2 is significantly less than other dwellings in the area. This would not be mitigated by the lower location and single storey height of a dwelling on lot 2 and is uncharacteristic of the area. Weight to be given to WLEP 2009 36 The parties disagree on the weight to be applied to WLEP 2009 given the transitional provisions in cl 1.8A. 37 Mr Reilly submits that WLEP 2009 must be given significant weight, as it is certain due to the fact that it has been made. He referred to Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 to support his submission that a draft LEP that has come into force is "certain and imminent " and must be given significant, although not determinative, weight. Mr Tenhave submits that WLEP 2009 should be considered but is not a reason for refusal as the application was lodged before WLEP 2009 was gazetted. Further, he considers the proposal is consistent with WLEP 2009 as secondary dwellings are permissible in the E4 Environmental Living zone. Findings 38 The Court has considered the weight to be given to a draft local environmental plan (LEP) and the effect of transitional provisions (see Mathers v North Sydney Council [2000] NSWLEC 84, Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138, Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279). The Court has adopted a consistent approach in these circumstances and recognises that the provisions of Section 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (the Act) require it to take into account: the provisions of any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved). 39 In Blackmore, Lloyd J summarises the authorities on the weight to be given to a draft LEP, particularly, in the circumstances where it was a draft when an application was lodged and has since been gazetted with a transitional provision. 40 The fact that WLEP 2009 has been made means that the plan is certain and imminent and accordingly the plan must be given significant weight in the determination of the application. However, due to the savings provision, the inquiry does not stop there. In Blackmore at [30], Lloyd J states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council [1991] 74 LGRA 185 at 193). 41 The key question before the Court is whether the proposed development is consistent with the aims and objectives and meets the planning approach in WLEP 2009. 42 The proposed subdivision does not meet the minimum lot size of 1000sqm in cl 4.1. The objectives of the clause are: (a) to control the density of subdivision in accordance with the character of the location, site constraints and availability of service, facilities and infrastructure. (b) to ensure lots are of a sufficient size and shape to accommodate development. 43 The application may be approved despite the non compliance with the numerical control if it is consistent with the planning approach sought to be achieved by the control. The character of the location, as discussed above, is one of large allotments with houses located towards the street with undeveloped areas of open space with vegetation on the lower slopes. The proposal is not consistent with this character. 44 Secondary dwellings are permissible under E4 Environmental Living zone, however, WLEP 2009 limits the size of such a dwelling and this is not the proposal before the Court. Any application for a secondary dwelling would need to be considered on its merits and is not a justification for subdivision of the site into two lots each of which could potentially be developed with a second dwelling. 45 I do not accept that WLEP 2009 envisages that development will occur in this part of the site through the creation of a new lot. WLEP 2009 must be given considerable weight and the proposal is not consistent with its approach. 46 For these reasons, the application is dismissed. Orders 47 The Court orders that:

1. The appeal is dismissed.
2. The development application (DA-2009/713) to subdivide lot 2558 DP845702, known as 49 Taminga Crescent, Cordeaux Heights, into two lots is refused.
3. The exhibits, except Exhibits 8 and G, may be returned.

      Annelise Tuor
      Commissioner of the Court

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