Abdallah v Canterbury City Council

[2005] NSWLEC 499

Land and Environment Court

of New South Wales

CITATION:

Abdallah v Canterbury City Council [2005] NSWLEC 499

PARTIES:

APPLICANT
Sam Abdallah

RESPONDENT
Canterbury City Council

FILE NUMBER(S):

10634 of 2005

CORAM:

Bly C

KEY ISSUES:

Subdivision :- Detached dual occupancy development

LEGISLATION CITED:

Environmental Planning & Assessment Act 1979
Development Control Plan No. 14 - Dual Occupancy Development Code
Development Control Plan No. 30 - Subdivision of Land

CASES CITED:

Segal & Anor. v Waverley Council [2004] NSWLEC 363

DATES OF HEARING:

07/09/2005

EX TEMPORE JUDGMENT DATE:

09/07/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Gough, solicitor
SOLICITORS
Storey & Gough

RESPONDENT
Mr J Reilly, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

7 September 2005

10634 of 2005 Sam Abdallah v Canterbury City Council

JUDGMENT

1 This appeal under s 96 of the Environmental Planning and Assessment Act 1979 relates to a detached dual occupancy development at 28 Moreton Street, Lakemba.

2 The dual occupancy development has now been constructed in accordance with Development Consent No. Z8620/96 granted by the council on 8 May 1997. Condition 16 of that consent provides that the property not be subdivided.

3 The applicant subsequently lodged a development application to subdivide the site so that each of the two dwellings has its own Torrens Title. An appeal to the Court was subsequently lodged on the basis of the deemed refusal of this application. This appeal was heard by Moore C who, having considered the merits of the subdivision application in the light of the issues identified by the council decided that a deferred commencement consent pursuant to s 80(3) of the Environmental Planning Act 1979 should be granted. The first deferred commencement condition involves the provision of vehicular access. The second condition provides that:

"Council provides notification in writing that it has granted consent to a s 96 application lodged by the applicant to remove Condition 16 of development consent Z8620/96 determined by council on 8 May 1997."

4 The applicant subsequently lodged a s 96 application that was determined by refusal on 2 June 2005. The reasons for refusal relate to: vehicular access; subdivision prohibition by Development Control Plan 14 - Dual Occupancy Code (“DCP 14”); insufficient site width as required by DCP 14 and Development Control Plan 30 - Subdivision of Land Code (“DCP 30”); and the deletion of Condition 16 would be contrary to the intent of the consent.

5 The applicant has now appealed against this decision.

6 In his submissions Mr Gough for the applicant explained that the matter of comity as dealt with by Lloyd J in Segal & Anor. v Waverley Council [2004] NSWLEC 363 was important in terms of taking into account the decision of Commissioner Moore. Arising from this there are three tests which can assist in determining whether or not Commissioner Moore’s decision should be followed.

7 The first test is whether the issue of comity was raised and obviously it was. In this regard I note that the decision in Segal has the effect that comity applies to Commissioners of the Court.

8 The second test involves the question of whether the earlier decision is both factually similar and temporally proximate to the circumstances of the application presently before the Court. There was no dispute that this application meets this test. It is certainly temporally proximate and in my view is factually identical to the application determined by Commissioner Moore.

9 The third test involves two questions. The first is whether there are any features of the subject application that might distinguish it from the previous application and the answer to this question must be the same as the answer to the second test. I certainly heard nothing to suggest anything to the contrary.

10 The second question of the third test involves asking whether the decision of Commissioner Moore was wrong. This became the focal issue in the hearing.

11 In his submissions on behalf of the council Mr Reilly invited me to consider how Commissioner Moore examined and dealt with the provisions of DCP 14. More particularly he submitted that it was open to me to give different weight to DCP 14 such that I would reject the application. He pointed out the general consistency between DCP 14 in its present form as well as its applicable provisions that were different at the time of the original application. More particularly, the provision in the DCP that I was invited to rely upon comprises the prohibition of the subdivision of any detached dual occupancy which fails to meet applicable standards and requirements. As a result of this prohibition determinative weight should be applied to the application. On this basis he submitted that I should reach the conclusion that on its merits, Commissioner Moore was wrong in upholding the appeal.

12 Mr Gough did not accept this approach but I do not need to consider his submissions in any detail because I am satisfied that Commissioner Moore was not wrong. I have reached this conclusion not by revisiting his judgment but instead by considering the broader objectives of DCP 14.

13 In terms of subdivision merit as distinct from procedural matters relating to subdivision approval, the relevant objective of DCP 30 is to allow the subdivision of a dual occupancy where both dwellings have a frontage to a public road.

14 Other more general objectives of DCP 30 involve: sufficient site area for a dwelling, ancillary facilities, outdoor recreation and the like and to have an area compatible with surrounding lots as well as having adequate access to and from the lot.

15 In DCP 14, the objectives of the site and layout requirements refer to sites having a sufficient area to allow compliance with overall objectives. The objectives also refer to the setting of a minimum site area, although that objective is satisfied by the instrument itself.

16 There appear to be no overall objectives for DCP 14 but it’s stated purpose deals with residential amenity, choice of accommodation, high standard of design and streetscape preservation.

17 The objectives in cl 3.3.1 of DCP 14 seem to be the most relevant objectives in relation to small/medium dwellings. This proposal falls within this category of dwellings and is subject to the objectives in cl 12.1.1 which deal with subdivision of a dual occupancy. The objectives for small/medium dwellings involve: the provision of a second dwelling in the context of subdivision requirements; the limitation of the size of dwellings in rear yards; and the encouragement of small and medium dwellings for accommodation associated with the principal dwelling on the land.

18 The subdivision objectives deal with dual occupancy subdivisions where individual dwellings have frontage to a public road and compliance with the requirements of the Local Government Act. The relevant objectives in DCP 14 in relation to design of buildings generally involve the provision of dual occupancy development on sites that can provide a good living environment for occupants and neighbours.

19 Being more directly relevant to this application, the subdivision objective is to allow the subdivision of dual occupancy development only where each dwelling has sufficient site area and reasonable access to a public road. The objective also allows development for the purposes of a granny (or garden) flat in circumstances where the subdivision of dual occupancy development is otherwise not permitted under the provisions of this DCP. I accept that this dual occupancy development does comprise a granny (or garden) flat.

20 Having visited the site and its environs, and being able to consider the development and the proposed subdivision in the light of the foregoing objectives I am of the opinion that overall, these objectives are met. I have also been persuaded that Commissioner Moore applied appropriate weight to both development control plans. Consequently and having not being able to discover anything in Commissioner Moore’s judgment in relation to merits that where I would reach a different conclusion, I am thus effectively obliged to uphold the appeal and amend the existing consent as sought.

21 Therefore the orders of the Court are:

1. The appeal is upheld.
2. Development consent Z8620/96 for a dual occupancy development at 28 Moreton Street, Lakemba, is amended by the deletion of Condition 16.
3. The exhibits are returned to the parties except Exhibits B and 3.
4. No order as to costs.

_______________________
T A Bly
Commissioner of the Court
Rjs/ljr