Verbunt v Albury City Council

CASES CITED: Zhang v Canterbury CC [2001] NSWCA 167

APPLICANT Mr B Hones, solicitor SOLICITORS Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Rogers, solicitor SOLICITORS Kell Moore Solicitors Pty Ltd

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

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

1 This extempore judgment is for an appeal I heard in Albury 25 July 2006 in respect of the land at the rear of 15 John Court with an access handle on the southern boundary of 474 Regina Avenue, North Albury.

2 By way of background a subdivision was approved in 1997 to excise the rear of Lot 16, known as No. 15 John Court, to create two separate allotments, one with frontage to John Court with an existing dwelling house on an area of land about 2100 sq m and the rear allotment some 1700 sq m. The access to the rear lot in the subdivision is from Regina Avenue via an access handle of some 45 m long that serves the rear parcel of land behind John Court. This subdivision also provided for an allotment of some 600 sq m with an existing dwelling house at 474 Regina Avenue, after approximately 200 sq m was excised on the its southern boundary for the access handle.

3 The council at that time of the subdivision approval attached a condition (known as L) to the consent that required a covenant to be provided restricting development on the newly created lot to a single dwelling. It would appear that such a covenant has not been created on the subject lot, however, this is not a matter for these proceedings.

4 During the hearing it emerged that it is necessary to amend the development application to include subdivision and as such the applicant was granted leave to give effect to a subdivision to provide 3m from the rear of the John Court Lot No. 15 to be added to the lot as approved in 1997. Even though this is what is often referred to as a boundary adjustment nonetheless it requires a subdivision application. As such before me now, and the respondent did not object to, I have a subdivision application for the land proposed as the lot to contain four single-storey dwelling houses that are shown in the development application.

5 The applicant also submitted a s 96 application to delete condition L to the 1997 consent. However the merits of the development application for four dwellings is the primary focus of my assessment.

6 On behalf of the council, a number of residents gave evidence to the Court and when we returned to the courthouse on Tuesday, I noted for the Court record those persons who gave evidence.

7 The Court had the benefit of the Court appointed expert, Mr Warwick Horsefall, a consultant town planner. He prepared a report that was tendered and also gave verbal evidence to the Court. Mr Horsefall's overall assessment is that he does not support the application although he commented that "it was close". The primary reason for his refusal in his opinion is that it is a clumsy attempt to retrofit a medium density housing development in the existing subdivision or the existing residential area and also it would be out of character with the John Court environs.

8 He also identified the relevant planning provisions which he considered the proposal did not satisfy, including the objectives of the LEP. He said that the DCP was silent about battleaxe developments for medium density housing and he also noted that generally the provisions of the DCP in numeric terms are complied in the subject development. However, it is noted that the access handle is some 45 m plus as the access driveway continues into the middle of the site. The DCP guideline is for a maximum length of 35 m.

9 I will describe the proposal. As I said, it is the subdivision application that I now have before me and the erection of the four single dwellings which are located for all intents and purposes in each corner of the battle axed allotment.

10 There was discussion as to whether the land is a regular or irregular shaped allotment. That is not seminal to my findings. Clearly the land itself is approximately a rectangular parcel of land, served by a long access driveway.

11 The Court in its assessment must consider the relevant planning provisions which are identified in the Albury Local Environmental Plan 2000 although this plan contains few controls relevant to the development. It is noted that the objectives of the zone must be considered under cl 8: The consent authority must not grant consent to the carrying out of development within a zone unless the consent authority is of the view that the development is consistent with the objectives of the zone. 12 At cl 9 the LEP contains the living area zone under which the subject site is zoned: The principal objective is to identify land for residential land uses and other land uses that are compatible within the zone and the particular objectives are to promote the efficient, orderly and sustainable development of the City of Albury's living areas. (c): To recognise, protect and improve through sympathetic development those living areas that contain natural or manmade structures, vegetation, areas of architectural culture or historic significance. (d): To provide freedom from intrusive, offensive, hazardous, aesthetically displeasing and environmentally unsatisfactory development.

(e) To promote an adequate range and choice of housing types, particularly affording housing to meet the needs of the community.

(f): To recognise and improve the residential character of different parts of the City of Albury.and (g): To encourage medium density development that is designed to achieve a high standard of amenity located in an evenly balanced manner throughout the residential areas. 13 The development control plan under which I must consider the application contains provisions including living area zone objectives and matters for consideration. The matters for consideration when assessing development applications include: (a) the compatibility of the development with the character and amenity of the surrounding neighbourhood,

(b) the desirability of retaining or enhancing the character and visual integrity of the neighbourhood, particularly having regard to tradition, scale, form, appearance, bulk and intensity of development and the residential amenity of that locality and the particular zone objectives include to recognise, protect and enhance through sympathetic development those living areas which contain the same objective as in the LEP. 14 For incompatible development, it is noted under s 3 that certain types of residential subdivisions may also be inappropriate. "Residential subdivisions which greatly intensify the density of an area so as to be inconsistent with the current development pattern will not be permitted. For example, where a cul-de-sac is initially developed with conventional housing lots and a further development proposed to introduce medium density housing into the cul-de-sac resulting in an intensified and inconsistent form of development, the inconsistent development will not be permitted."

15 The provisions of the standard of living requirements contained in s 9 relate to neighbourhood and development character, open space and solar access, privacy and setbacks. The ones that are of particular importance in this relate to the neighbourhood and development character. In established areas, it states the minimum separation distance between medium density housing schemes is one allotment. Dispensation from the separation requirement in established areas may be available if the applicant can provide evidence that the MDH scheme is within 400 m of weekly shopping facilities or established public transport facilities which link directly with weekly shopping facilities. 16 The site must not be located within the last 120 m of a court or dead-end street, cul-de-sac and this requirement will not be varied in Greenfield areas but may be reconsidered in established areas along the same lines as objective 1(3) above that I read.

17 The provision of MDH sites in the DCP are that generally they are not to be irregular in shape or have uneven parallel boundary links. However, it is noted innovative use of sites with regular boundaries may be negotiated at pre-application stage.

18 The requirement for subdivision in the DCP refers to battleaxe allotments and subdivision and detached housing clauses also contain a number of objectives. While I will not cite them here suffice to say I have had regard to them and the issue is also what weight should be put on the subdivision requirements in terms of council's controls for the subject development application.

19 The DCP states under allotment sizes: The council does not favour the creation of battleaxe allotments due to the lack of street presence of the resultant dwellings and the privacy and bulk issues likely to result from the location of the dwelling and where battleaxe allotments are considered, the minimum access handle width is to be 3.5 m. The maximum length is to be 30 m and no more than two battleaxe allotments should adjoin one another or share an access handle. 20 It was submitted on behalf of the applicant that the development generally complies with all of council's controls, that is in terms of the compliance table I note that the proposal gets a tick against the majority of the standards.

21 I accept that the site is within the distance for a convenience or shopping and this is not an impediment to the application.

22 The control which the proposal does not satisfy in terms of the DCP is the length of the battleaxe handle or the handle to the allotment. For the purposes of my assessment under the DCP, it could be argued that this is a regular shaped allotment. Even though many other DCPs refer to battleaxe, hatchet or irregular shaped allotments but in my assessment of this application, I accept that it could be regarded as a regular shaped allotment. However, a critical issue in my assessment is the length of the access handle not whether it is a regular shaped allotment.

23 Given that this is a verbal judgment, I will state at this point that I have carefully assessed the application in the context of Council's planning regime and on its merits in terms of s 79(c) I am not satisfied that the proposal is one that warrants approval, specifically, that is 79C(1)(b), the impacts on adjoining development and (c) the suitability of the site for the development.

24 The mere compliance with a development control plan does not mean that a development is one that should necessarily be approved. I concur with the Court appointed expert's view that the character of the area would not be satisfied by the proposed development in terms of being compatible or consistent. However, I would go even further as I am of the opinion that the development is one that would be out of character to the point where it would be antipathetic to the area and its residential character.

25 I accept that compatibility allows different forms of development at different scales and different densities to harmoniously coexist but in the circumstances of this application, I am not satisfied that the proposed development is compatible with the character of the area.

26 I consider that the impacts on the adjoining properties in John Court, that is Nos. 11 and 19 are such that the proposal is foreign to the development within the area. The zoning does allow for medium density development throughout the entire living area, except in a few locations which the council has identified on a map. However, this does not mean that the existing character of areas, even though all zoned under the one generic living area zoning, should be compromised by future development that detracts from the character and amenity of the locality.

27 The proposal for multi-housing on an internal lot sandwiched between two lots in my assessment is contrived. The boundary or rather the access handle being at least 45 m to the boundary of the internal lot is one that does not create or does not provide for appropriate street presence for a multi-unit dwelling development. The proposal does not provide for what is described as an integrated development, and I do not use the word "integrated" in terms of council's planning controls but, in terms of a comprehensively designed medium density development that 'fits in' with the locality and makes a positive contribution as well as having a presence and identity of its own.

28 The proposal to build four dwellings serviced by a long battleaxe handle and then placed in the middle of what are exceptionally large allotments in excess of one acre is in my view contrary to the character of the area and the character of the area must be considered in the development of medium density housing as identified in the development control plan.

29 In this regard, I must have real genuine and proper regard to the provisions of the development control plan and that does not just mean the numeric compliance and this has been clearly articulated in the Court of Appeal in the matter of Zhang v Canterbury CC [2001] NSWCA 167 by Spigelman CJ.

30 The Court must also have regard to the suitability of the site. In my assessment the site is not suitable for medium density housing. It has, as I stated, a long battleaxe handle with basically four dwellings one in each corner of the allotment so that the presence or presentation of each dwelling is to a large apron which provides the manoeuvring area for the four dwellings. In my merits assessment the proposal is a minimalist development and it does not provide an appropriate presence and identity for itself let alone sit comfortably in the context of the established character of the area, in particular John Court.

31 The DCP also refers to 'street presence' and whilst it may be argued that this is not relevant because of the configuration of the subject site at the same time in a merits assessment I must have regard to the suitability of the site and whether the proposed development is appropriate. In this regard the development fails.

32 The issue of garbage bins or waste collection was raised at the proceedings. This is not determinative in my assessment of the development application because it fails for the above reasons. But clearly it is symptomatic of the difficulties of creating a medium density development down a very long driveway with a narrow restricted street frontage that relies on excessively borrowing from the adjoining property to allow waste services and thereby impacting on the streetscape. As I commented during the proceedings the garbage issue may have been overcome by conditions such as the shared use of certain receptacles but in any event it is not determinative in my reasons for refusal.

33 While there are no direct privacy issues in terms of the adjoining houses in John Court at the same time the character of an area is not just a consideration of impacts in terms of privacy and overlooking or overshadowing. There is an ambiance and a character in this area that should be maintained for these residences with a unique lifestyle and contribution to a choice of housing in the living area.

34 The Court was not taken to any similar developments of internal lots for medium density housing and in my assessment this proposal would create an undesirable precedent. The issue of precedent has not been determinative in my determination but the proposal would be an undesirable precedent if approved.

35 The DCP may be silent on internal developments because they may not have been contemplated before, and it is certainly not intended that DCPs anticipate every situation and form of development, however, a future review may include relevant provisions. Notwithstanding this in my assessment under the provisions of s79C(1) (b) and (c) of the Act the application fails for the reasons given above.

36 The Court was also taken to the issue of the covenant. That is, there is a covenant over the other properties in John Court to be only developed for single dwelling houses and this same intention is reflected in condition 'L' of council's approval of 1997 for the subdivision, although it appears not to have been executed. If a covenant or instrument had been placed over the subdivided lot the Council or the Court can vary such covenants and therefore this would not in itself be an impediment to the development if it was otherwise worthy of approval. However, given the proposed development requires a new subdivision the issue of the covenant does not arise here. It is important to note however that covenants can play a useful role to allow purchasers to be aware of certain restrictions, including planning conditions, before acquiring properties.

37 It was submitted on behalf of the applicant that property owners have certain expectations for developing their land and the Court does not dispute this. However, in my assessment I consider that it is unreasonable for an owner to expect the subject land to be developed for the purposes of medium density housing for the reasons given above. In my opinion, and I agree with the Court appointed expert, this internal parcel of land is only suitable for a single dwelling house even though it is a significant size parcel of land but internal parcels are generally larger and have a greater number of constraints, including the number of adjoining properties.

38 It could be seen on the view that the Regina Avenue properties are different in character. They are generally smaller houses on smaller allotments of land than John Court and there are also a number of dual occupancy developments that are serviced by driveways in a gun barrel fashion. In this regard the Council may also consider refining or providing further controls/ guidelines for the minimum size of allotments and the minimum frontage of allotments to a street for comprehensively designed medium density housing so that there is not a continued pattern of medium density or dual occupancy developments serviced by driveways with units down one side.

39 It follows that the applications for subdivision and the s96 modification also fail in my assessment. The Court considers that in the circumstances a combined application for subdivision of the land and the erection of a dwelling house would provide for greater certainty as to the outcome. Such a requirement is often preferred having regard to adjoining development and the character of the area.

40 On the basis of my assessment above the formal orders of the Court are: 1. The appeal in respect of the land located at the rear of No. 15 John Court and with an access handle adjoining 474 Regina Avenue, North Albury, is refused. 2. The development application submitted to Albury City Council and as amended for subdivision of the land and the erection of 4 single storey dwellings is determined by the refusal of consent and the s 96 application to modify the consent issued by council in respect of DA 97-10029 is also refused. 3. The exhibits except A, B and D are returned to the parties. ___________________ J S Murrell Commissioner of the Court Rjs/jsm

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