Tidmarsh v The Council of Camden

Overdevelopment of the Site: Contention 1

1. The first contention reads that "The development is an overdevelopment of the Site because of its incongruous rear setback and inadequate rear open space."
2. There are two limbs to this contention of overdevelopment, the first being incongruous rear setback and, the second being inadequate rear open space.
3. The Site is located with the Harrington Grove area which is an area for which the CDCP provides controls at Schedule 4 in addition to those of the general residential controls in Parts 2 and 4 of the CDCP. The Site is more specifically within Precinct L of Harrington Grove area. The provisions of Schedule 4 require a rear setback of 6m for outbuildings and development consent is required for outbuildings larger than 10m2.
4. The Applicant submits that "the whole concept of this Harrington Park was to protect the Cumberland Woodland, it was to protect the bushland and the water ‑ the stormwater and the water, and those areas. So, what's happened is certain pockets have been developed, but they are for an urban area." (Transcript 6 September 2022 page 36 at 3)
5. Harrington Grove area more generally is subject to the Harrington Grove Planning Principles at section 4.1.1. The Respondent draws the following principle to the Court's attention in relation to the C4 (or E4) Environmental Living zone within the Harrington Grove area: "Other area zoned E4 environmental living will also incorporate residential dwellings, but in a manner which is more sympathetic to the bushland environment. These dwellings are defined as eco residential housing. The zone applies to the area to the north of Cobbitty Creek, adjacent to Cobbitty Road, and several areas generally located in the central part of the main Harrington Park site. These places will be characterised by housing which is less densely developed and approaching a more rural character. Dwellings and roads will be sensitively located in an effort to preserve as much existing vegetation as possible. Housing designs will be particularly reflective of the bushland settings of these areas, with materials and designs reflecting the need to minimise visual impact and address bush fire risks."
6. Objective a of the Harrington Grove Planning Principles reads as follows: "a. To facilitate the development of Harrington Grove in a way that is environmentally sensitive and responds positively to the site's heritage and scenic character, while conserving large sections of regionally significant remnant bushland."
7. The relevant Schedule 4 objectives of the residential controls are set out in section 4.4.1 Harrington Grove General Residential Building Controls Applying to all Precincts (folio 57 of the Respondent's Bundle of Documents, Ex 3) as follows: "Objectives a) Development is to enhance the existing or planned town/suburban character and streetscape. b) The form, scale and siting of buildings, and the materials and colours are to be appropriate to the character of the area. … (e) Setbacks are to enhance or create landscape features, and maintain visual and acoustic privacy."
8. The objectives of the C4 zone (previously E4 zone) are set out in the CLEP as follows: 1. To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. 2. To ensure that residential development does not have an adverse effect on those values.
9. The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt and Complying Development Code), includes provisions relating to a number of types of outbuildings in Pt 2, Div 1, Subdiv 9 - Cabanas, cubby houses, ferneries, garden sheds, gazebos and greenhouses.
10. The setback controls of the Precincts within Harrington Grove are set out in table 4-2 reproduced below:
11. The Respondent notes that neither of the two specified exceptions for side and rear setbacks provided for in the footer to Table 4-2 are relevant to the circumstances of the Proposed Development. (Transcript 5 September 2022 page 16 at 29)
12. Within Part 4 of the CDCP, there are generic provisions for outbuildings in Part 4.10 which include objectives, controls and also provides for site requirements, setback and building design and style.
13. In relation to setbacks, the CDCP in Part 4.10 provides as follows: "1. All outbuildings must be planned and organised in a group, and must be located behind the building line, so as predominately hidden from view from the public domain. 2. All outbuildings must comply with the relevant outbuilding setback provisions within State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. 3. Greater setbacks may be required to minimize any adverse impacts on the amenity of adjoining residents to the proposed use of the outbuilding."
14. Both parties acknowledge the 900‑millimetre minimum setback for outbuildings which comply with dimensions of exempt development pursuant to the Exempt and Complying Development Code, however the Harrington Grove rear setback controls is 6m (refer to Table 4-2 of Schedule 4, CDCP)

Is the Proposed Development an overdevelopment because of its incongruous rear setback?

1. Firstly, dealing with incongruous rear setback, the CDCP contains schedules for site specific areas, and in the event of an inconsistency between a schedule and the main body of the CDCP, the schedule prevails. The Site falls within Schedule 4 of the CDCP being the site specific area of Harrington Grove and within Schedule 4, the Site is within Precinct L. The site specific residential controls are found at Section 4.4 of Schedule 4 and these controls although specific to Harrington Grove, they must be read in conjunction with the generic residential development controls in Part 4 of CDCP. In the event of any inconsistency, the controls below prevail as follows: 1. Rear setback 6m; 2. Maximum floor area of an outbuilding 10m2, subject to development consent for a larger outbuilding.
2. In relation to objective (e) of section 4.4.1 quoted above at [26], there is no significant vegetation on the Site, however, the Applicant relies on a set of Landscape plans (Ex B) which create a landscape feature on the boundary within the proposed 1.5m setback of the proposed outbuilding as shown in the extract of Drawing LPS34-22-394/2 dated Aug 2022 Rev E (Ex B) in Fig 2. Figure 2 Extract of Landscape Plan DWG LPS34-22-394/2 dated Aug 2022 Rev E
3. The experts agree that the landscaping along the rear boundary of the Site would mitigate any visual impact to the neighbouring properties at Nos 24 and 26 Governor Drive (JER at 15(c)) and that conditions could be imposed to address any potential noise impacts (JER at 15(d)). Accordingly, I find that objective (e) of section 4.4.1 is achieved by the Proposed Development.
4. I find that on balance, the rear setback of the Proposed Development is not incongruous with the existing and desired future development pattern on the basis that the objectives of the rear setback are achieved, in particular as a result of the proposed setback of 1.5m allowing for and providing a landscape feature and that there is no adverse impact on the neighbours.

Is the Proposed Development an overdevelopment of the Site because of inadequate rear open space?

1. Secondly, in relation to inadequate rear open space, the landscaping and private open space contentions 3 and 4 are resolved.
2. I find that the answer to the question of whether the Proposed Development is an overdevelopment of the Site because of inadequate rear open space to be no, it is not.
3. I find that the rear setback is on balance not incongruous on the basis that the objectives of the rear setback are achieved, in particular as a result of the proposed setback of 1.5m allowing for and providing a landscape feature and there is no adverse impact on the neighbours. I also find that there is adequate rear open space. I therefore conclude that the Proposed Development is not an overdevelopment of Site as contended by the Respondent in contention 1.

Inappropriate Siting of Outbuilding: Contention2

1. The second contention reads that "The development is inconsistent with the built form character of the area and will have a detrimental impact on the amenity of adjoining properties."
2. Ms Houlison's evidence is that Council is not raising any issue with the impact on neighbouring properties. (Transcript 6 September 2022, page 13 at 50)
3. Accordingly, the remaining issue of this contention for determination is whether the Proposed Development is inappropriately sited because it is inconsistent with the built form character of the area.

Is the siting of the outbuilding inappropriate because it is inconsistent with the built form character of the area?

1. Both experts agree that character is determined by the whole site and not just the streetscape (Transcript 6 September 2022 page 11 at 45 and page 15 at 40). They also agree that the Proposed Development will not impact the streetscape character (JER at 12(d)) and that the siting of the outbuilding towards the southern side boundary offers a better arrangement of private open space and amenity for the occupants. (JER at 15(a), Ex 2)
2. Part 4 of the CDCP provides residential dwelling controls and Part 4.10 addresses outbuildings with the relevant objective being: "To ensure outbuildings in the residential zone and environmental living zones are appropriately sited and designed to minimise impacts on adjoining properties, the streetscape, and the character of the locality." "To ensure the visual impact of the outbuilding in minimised and integrated into the existing surrounding environment."
3. In the JER at 13(c) Ms Houlison lists a number of grounds upon which she bases her opinion that the size and siting of the outbuilding results in an overdevelopment. She refers to the character of the C4 Environmental Living zone "which is characterised by less densely development residential dwellings and approaches a more rural character."
4. In cross examination, Ms Houlison clarified what she meant by her description of character of a residential dwelling in the C4 Environmental Living zone as approaching a more rural setting as follows: (Transcript 6 September 2022, page 15 at 30): "I think it's residential development that's more sympathetic to the bushland setting. It's not about having the whole site covered with outbuildings, dwellings, it's about having that garden environment, that garden setting, that bushland setting, to be mindful of the surroundings."
5. Ms Houlison also refers, at 13(c) of the JER, to the Precinct's 6m rear setback provision "to ensure that development is provided in a manner that creates open space, separation and breathing space between properties."
6. In relation to breathing space, Ms Houlison explained in cross examination that breathing space can be identified as the 6m rear setback and also agreed that breathing space is her language and not language found in any of the relevant controls or objectives of the CDCP (Transcript 6 September 2022 page 17 at 10). I note that Ms Houlison has confirmed that Council does not raise any issue with impact on neighbouring properties and that the landscaping and private open space contentions are resolved.
7. Mr Moy's evidence in JER as to the built form character of the area appears at 16 and he gives reasons for his opinion that a rear setback of 1.5m to the outbuilding is satisfactory.
8. The Applicant submits as follows (Transcript 6 September 2022, page 35 at 26 -46): "all of the contentions, Commissioner, relating to insufficient landscaped area, insufficient private open space, lack of landscape plan, all those things that were original contentions, and even the external impacts, Ms Houlison has said we don't have a problem with any external impacts on neighbours from this structure […] have regard to the landscape plans because they will achieve what we discussed this morning. They will achieve a dwelling in a landscape setting, much more so than what we see presently where there's grassed areas and people mow their backyards, and that's what they do. So, we'll be making our contribution to that"
9. The Applicant submits further (Transcript 6 September 2022 page 37 at 13) as follows: "we've sited the proposed structure to allow for the maximum north facing area of the yard to integrate with the private open space, form part of that open area at the rear, and it just happens to mean that that, as I said, the subdivision pattern works nicely to ensure that the portion of the building that is exposed to the neighbour behind, you know, is minimised or tucked away to one side."
10. I find that the whole site is not covered with outbuildings, that there is a garden setting with the proposed landscaping of the north facing rear yard to integrate with the private open space and the outbuilding will not be visible to the public domain. I conclude that the siting of the outbuilding is appropriate for these reasons and that the outbuilding minimises impacts on adjoining properties, the streetscape and the character of the locality.

Excessive floor area of outbuilding: Contention 5

1. The final contention remaining for determination is contention 5 which reads that "The development is an overdevelopment of the Site as the proposed outbuilding, which is located in the rear setback area, is of an excessive size."
2. Section 4.4.8 of Schedule 4 to the CDCP relates to outbuildings: "Any outbuilding in excess of 10 metres squared must be of the same architectural form as the main dwelling and be constructed of the same materials. Such outbuildings must be contained within the building envelope",
3. The Respondent submits that the building envelope is a reference to the setback table in relation to the frontside and rear setback requirements for Precinct L. (Transcript 5 September 2022, page 17 at 10) "It is not disputed that the proposed outbuilding will be within the 6m rear setback and it is this control in the CDCP that the Applicant expressly seeks to vary and submits that "this particular variation of the DCP achieves all of the objectives in terms of integrating with the character of that area" (Transcript 6 September 2022 page 36 at 15)
4. In relation to whether the proposed outbuilding is of an excessive size, it is clear from the language in section 4.4.8 that the CDCP anticipates that there will be occasions where the size of an outbuilding will exceed 10m2.
5. The Applicant relies on Control 2 in Part 4.10 for Outbuildings which reads as follows: "2. Unless otherwise approved by council, the use of an outbuilding must be of domestic storage and hobby use only, which is ancillary to the use of the dwelling on the site."
6. Ms Houlison accepts that the purpose of the outbuilding fits within the hobby/storage definitions as set out in the CDCP controls for outbuildings (Transcript 6 September 2022 page 22 at 38). Ms Houlison, in the JER at 25(a), had expressed her opinion that "the intended use could operate satisfactorily in an outbuilding of a reduced scale." At the time of writing the JER the proposed size of the outbuilding was 49m2 whereas the Proposed Development as amended and as before the Court for determination measures externally at 40m2.
7. The Applicant submits that following the onsite view, the size of the Proposed Development was "paired back to the minimum" ensuring that the five bikes can be stored, that there was practical and reasonable access to actually reach those storage areas and a minimum of concrete area including the two lifts and "the ability to have a chair and the garage door open." (Transcript 6 September 2022 page 35 at 5)
8. The Applicant submits that the outbuilding is designed specifically for a purpose and as such "it is fit for purpose and we've demonstrated that it is at a minimum to fit for purpose, […] we've got the workbench, we've got a metre, we've got the lift which is now, you know, 800 millimetres wide, not 1.2 metres wide, we've got a metre, and we've got areas for circulation which will allow that to be able to be carried out." (Transcript 6 September 2022, page 35 at 14)
9. I find that the intended use of the outbuilding as described by the Applicant could not operate satisfactorily in an outbuilding of a reduced scale.
10. The Respondent submits that: "the better question here is not whether the floor are of the outbuilding is excessive with regard to the particular hobby of the current occupants, but whether the size of the outbuilding is excessive as an outbuilding to a dwelling in the Harrington Grove area, and the evidence of Mr Moy is that the proposed development is not an overdevelopment of the site because it otherwise complies with the site coverage controls, the private open space controls, and the landscaped area controls of the DCP. […] It's inappropriate to rely on compliance with some provisions of the DCP to justify noncompliance with others." Transcript 6 September 2022 page 44 at 19)
11. In relation to the precedent concern raised by the Respondent, each case is assessed and determined on its own merits. I have assessed and determined these proceedings on the merits of the Proposed Development on the Site. The Applicant relies on the particular circumstances of the owner of the Site and the Respondent submits, correctly to a great extent, that the question of whether the Proposed Development is necessary for the occupants of the Site is an inappropriate consideration as development consents run with the land (Davies v Penrith City Council [2013] NSWLEC 1141). The Proposed Development has to be assessed on its merits rather than what might be necessary for the present or proposed occupants of the land that will benefit from the consent. (Transcript 6 September 2022 page 21 at 4)
12. In the decision of Moore SC, as he then was in the matter of Davies v Penrith City Council [2013] NSWLEC 1141, the Court considered the question of necessary and/or reasonable in the context of the planning principle around impact to neighbours. In these proceedings, there is no impact to neighbouring properties however, the comments of Moore SC at pars 119 and 120 are of assistance as follows: "The present language, in my view, raises the risk, through the separation of necessity from reasonableness, of an anthropocentric interpretation of this element of the planning principle …It is long established law that proper planning decisions are not made on such a basis. Development consents run with the land, and proposals for consent are to be assessed in that light, rather than by consideration of what might be necessary for any present or proposed occupants or the beneficiaries of any consent."
13. The Respondent submits that the appropriate question is whether the Proposed Development is reasonable as an alteration and addition for the purposes of the dwelling house on the site and that the anthropocentric approach taken in this matter by the Applicant is inappropriate, and as a consequence, submits that the risk of precedent is actually relevant and should be taken into account and relies on the decision of Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] 121 LGERA 101; [2002] NSWLEC 75 at 28 which provides as follows: "…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."
14. I have considered whether this Proposed Development objectionable in itself. There are no adverse impacts on neighbours, landscaping and private open space is satisfactory and there are no issues as to height. I do not find that the Proposed Development is objectionable in itself. I therefore conclude that granting development consent to the Proposed Development will not result in an undesirable precedent.
15. Having considered all the evidence including my own observations from the Site view together with a careful consideration of the submissions of the parties, I conclude that there is sufficient basis to allow the 6m rear setback control in the CDCP to be varied to 1.5m for this Proposed Development and that development consent should be granted for the reasons set out in this judgment. I am satisfied that the Proposed Development does not change the existing dwelling from low impact residential development and as such is consistent with the C4 Environmental Living zone objectives.

Jurisdictional prerequisites

1. There are jurisdictional prerequisites that must be satisfied before development consent can be granted by the Court.
2. The Court has been provided with evidence of owner's consent. The Class 1 Application filed 17 May 2022 includes owners consent signed by Mark McDonough pursuant to Power of Attorney from the Australian Executor Trustees Ltd (AET) (Tab 2, Ex C). There is also a letter from AET dated 19 July 2022 (Ex D) which advises that AET has been appointed financial manager by the NSW Supreme Court to manage Kaitlyn Tidmarsh's estate and that Kaitlyn Tidmarsh is the owner and resident of the Site.
3. Registered on the property title of the Site at Item 4 of Schedule 2 is the Community Scheme - Harrington Grove: "Community Management Statement" Dealing AS154435 (Land Registry Services). By-Law 5.2 of the Harrington Grove Community Management Statement requires a resident to obtain prior written consent of the Community Association prior to undertaking any development within the community parcel (Ex E). The Applicant relies on cl 1.9A CLEP which reads as follows: 1.9A Suspension of covenants, agreements and instruments (1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.
4. The Respondent does not contend that the By-Law 5.2 is by any means a jurisdictional prerequisite, and agrees that the Court can determine this application without that written consent from the Community Association. I come back to this in relation to proposed consent condition 2(7) sought by the Respondent and not agreed by the Applicant.
5. There is no contention raised in relation to section 2.7 Bush Fire Risk Management of the Camden Development Control Plan 2019. The council is content, and the Court is satisfied with the way that that has been addressed in the Applicant's Statement of Environmental Effects, at p 17, Tab 6 of Exhibit C, together with the Bushfire Assessment Report Tab 7 of Ex C.
6. The Proposed Development was notified by the Respondent (SOFAC par 31, Ex 1). One anonymous written submission was received which is included in the Respondent's Bundle of Documents together with a copy of the notification letters sent on 7 June 2022 (Ex 3).

Conditions of Consent

1. The Respondent filed Proposed/Draft Conditions of Consent on 6 September 2022 (Ex 4). I come back to the role and relevance of the Harrington Grove Community Management Statement By-Laws as the Respondent seeks the inclusion of consent condition 2(7) which will require the following prior to the issue of a Construction Certificate: "2(7) Approval of Community Association - Prior to undertaking any development, the applicant is to obtain the approval of the Harrington Grove Community Association to the carrying out of the development, and any amended plans the subject of this consent."
2. The Applicant submits that this condition should be deleted because of the operation of cl 1.9A of the CLEP (Transcript 6 September 2022 page 32 at 48)
3. The Respondent's submission is that that condition, imposed in the way that it is drafted, is appropriate in circumstances where the way in which the community management statement is framed is not in relation to the requirement for consent by the authority before development application is made, but rather it's framed in the way that a resident may not undertake any development within the community parcel unless it has obtained prior written consent. The Respondent says that this "is something that can be satisfied after consent has been granted, but we have included it as a condition because we think it is appropriate for that community association to be aware of the development that is proposed and that will be carried out. So, we would press for that inclusion to remain." (Transcript 6 September 2022 page 45 at 40)
4. I am not satisfied that there is a proper planning purpose for proposed consent condition 2(7). The Applicant is required to comply with the community scheme regardless of whether development consent is granted. The proposed condition of consent serves no additional purpose. I conclude that condition 2(7) should be deleted.

Orders:

1. The Court orders: 1. The appeal is upheld. 2. Development application No. 2021/1599/1 for alterations and additions to the existing dwelling and construction of a 40m2 detached outbuilding at 16 Underwood Circuit, Harrington Park is determined by granting consent to the application subject to the conditions in Annexure A. 3. Exhibits 3 and E are returned and all others are retained.

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. Decision last updated: 30 November 2022