Adams v Warringah Council
[2011] NSWLEC 1063
•15 March 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Adams v Warringah Council [2011] NSWLEC 1063 Hearing dates: 16,17 February 2011 Decision date: 15 March 2011 Jurisdiction: Class 1 Before: Morris C Decision: (1) The appeal is upheld in part.
(2) Development Application No DA2009/1331 is approved for the following works only:
(a) Alterations and additions to an existing dwelling house including an attached carport, 5000 litre water tank and works to bring the building to accord with the requirements of the Building Code of Australia and Australian Standards AS3959-1999 - Construction of Buildings in Bush Fire Prone Areas;
(b) Construction of a 3m x 3m garden shed;
(c) Removal of an existing power pole and provision of underground electricity cables to service the existing dwelling;
(d) Demolition of an existing awning attached to the outbuilding and the installation of a 5000 litre water tank subject to the conditions included in Appendix "A".
(3) That part of Development Application No DA2009/1331, which proposed the conversion of an existing outbuilding to a dwelling house, is refused.
(4) The exhibits, other than exhibit B, are returned.
Catchwords: Whether development is consistent with Desired Future Character; weight to be applied to draft local environmental plan; housing density standards. Legislation Cited: Environmental Planning and Assessment Act 1979; Warringah Local Environmental Plan 2000; Land and Environment Court Act 1979; Standard Instrument (Local Environmental Plans) Order 2006 Cases Cited: Retirement by Design Pty Ltd v Warringah Council [2007] NSWLEC 87 Texts Cited: Building Code of Australia; Australian Standards AS3959-1999 - Construction of Buildings in Bush Fire Prone Areas. Category: Principal judgment Parties: Helene Adams (Applicant)
Warringah Council (Respondent)Representation: Counsel:
Mr M Fraser (Applicant)
Solicitors:
Gadens (Applicant)
Mr A Pickup (Respondent)
Storey & Gough (Respondent)
File Number(s): 10798 of 2010
Judgment
This is an appeal pursuant to the provisions of s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Warringah Council (the council) of Development Application No. 2009/1331 (the application) which proposed:
- Alterations and additions to an existing dwelling house including an attached carport, 5000 litre water tank and works to bring the building to accord with the requirements of the Building Code of Australia (the BCA) and Australian Standards AS3959-1999 - Construction of Buildings in Bush Fire Prone Areas (AS3959);
- Construction of a 3m x 3m garden shed;
- Removal of an existing power pole and provision of underground electricity cables to service the existing and proposed dwelling;
- Alterations and additions to an existing outbuilding, installation of a 5000 litre water tank and change of use to a dwelling house;
- Demolition of an existing awning attached to the outbuilding.
The main contention in the matter is whether the change of use of the outbuilding to a dwelling satisfies the council's planning controls. In the event that I find against the applicant in relation to this aspect of the application, consent is sought for the remainder of works to the existing dwelling. The council does not oppose that aspect of the application.
The site and its context
The application is in relation to land comprising lot 2 DP 27916 and known as No. 66 Northcott Road, Cromer (the site). The site is an L-shaped allotment with a frontage of 37.43m to the roadway and an area of 2.326ha. The site rises steeply from the road to a rock plateau that occupies a major portion of the rear (northern) section of the site, that portion being significantly wider than the lower area and approximately 62m above road level. The area between the rock platform and the existing dwelling is heavily vegetated and an access track has been formed through that area to provide access to the rear of the site.
The site contains an existing dwelling house, metal shed and outbuilding. Minimal vegetation remains on the front portion of the site, the land having been stripped to provide extensive driveway access to the dwelling house, which is setback approximately 50m from the front property boundary. The outbuilding is erected adjacent to the eastern boundary of the site on an approximate alignment of 32m to Northcott Road. A small metal shed is located in the south-eastern corner of the site.
To the east of the site fronting Macquarie Street, are a number of dwelling houses erected on smaller residential lots. The side, eastern property boundary is the zone boundary between a residential area and the Oxford Falls Valley locality. That locality is characterised by large lots and is primarily bushland however, there are a number of dwelling houses also located within the area.
The site is identified as being bushfire prone.
Background and the proposal.
The parties agree that the existing dwelling house was approved by the council in 1982 pursuant to development consent 82/96. There is no agreement as to whether the existing outbuilding has been built in accordance with any development consent however, it is agreed that a building has been on the site in the location of the existing outbuilding since at least 1965 as evidenced from aerial photographs tendered by the applicant's planning expert, Mr Sarrich.
The council did issue a building approval for a dwelling on the site in 1963, a condition endorsed on a stamp fixed to that approval requiring the dwelling to be erected on a building alignment of 66 feet (20.12m). This is despite the plans showing the dwelling being setback 70 feet (21.34m) from the front boundary. The plans also show a setback of 8 feet to the eastern side boundary and a 30 feet x 12 feet (9.14m x 3.66m) garage to be erected to the rear of the dwelling. No external dimensions for the dwelling were shown on the plans however, internal dimensions suggest the building would measure 36 feet by 25 feet (10.97m x 7.62m). The floor plan provided for two bedrooms along the western side of the building, a living room in the south-eastern corner, kitchen in the north-east corner and bathroom and laundry located between the kitchen and bedroom 2. An entry and hallway separated the living room and bedroom 1. The plans show the building being erected on piers with a gabled roof. The garage appears to be on a slab with a skillion roof.
The existing outbuilding is erected 32.63m from the front property boundary, has dimensions of 10.47m x 6.29m and has been fitted out as a three-bedroom dwelling including a lounge/dining room, kitchen and bathroom/laundry. A narrow verandah runs across the front of the building and a lean-to is attached to the western side. It is that lean-to that is proposed to be demolished.
It is Mr Sarrich's opinion that the outbuilding is the dwelling approved by the 1963 building permit. Mr Cowan, the council's planning expert is of the opinion that the 1963 consent was never acted upon however he does concede that there has been some building in the location of the outbuilding on the site for the past 50 years.
From evidence provided in the proceedings, the council has, since 1985 issued a series of notices of order in relation to the use of the outbuilding as a dwelling. These notices were issued to the current and prior owners of the site.
An inspection of the site, conducted in association with a conciliation conference pursuant to s34 of the Land and Environment Court Act 1979 held on 19 November 2010, showed the outbuilding was capable of use as a dwelling however was not occupied for that purpose at the time. Kitchen and bathroom facilities were installed and the building was constructed in accordance with the layout shown on the plans currently before the Court, that layout being significantly different to that shown on the plans which form part of the 1963 approval.
The applicant has lodged an application for a building certificate with the council. At the conclusion of the hearing in this matter, that application remained undetermined.
A more recent development consent has been granted by the council (DA2006/175) which authorised the construction of front and side (west) boundary fencing and a driveway. The approved front fence is 1.8m high and comprises a 1.2m high solid block fence with 1.8m columns and black slat infills. Two gates have been approved in the fence, one to provide access to the new driveway, to be constructed 2m inside the western property boundary up to the approved dwelling house. The consent also allows the construction of a concrete parking area and vehicle turning bay adjacent to that dwelling. The second gate, at the eastern portion of the site is to provide access to the front garden shed and yard. The fence is currently under construction. Condition 43 of that consent states:
43. No consent is given or implied for use of the second structure on the site to be used as a residential dwelling. This structure is not to be occupied as a separate domicile. Any other use of this structure will require consent from Council under separate application.
It is not necessary that I determine whether the outbuilding was approved under the provisions of the 1963 building permit or some other approval or if in fact it is an unauthorised structure. This is because the 1982 consent for the agreed dwelling house authorised use of the outbuilding as a garage associated with that dwelling. Condition 4 of that consent requires the development be in accordance with the approved plan. That plan shows the use of the outbuilding as a garage. Similarly, the use of the building for residential purposes is prohibited pursuant to condition 43 of the 2006 consent.
The plans submitted with the application propose the construction of a carport adjacent to the approved dwelling in that area approved as carparking under DA2006/175. In addition, the plans show parking for the proposed dwelling in the south-western corner of the site adjacent to the property boundary with the driveway access and parking nominated as "approved". There is no evidence before the Court that these areas have been approved for parking and the location of the proposed access does not accord with the second gate approved under DA 2006/175 as modified.
During the hearing, plans which indicate an alternate location for parking for the proposed dwelling were tendered. That plan requires the construction of an extensive driveway and hardstand area to the south-west of the dwelling. The proposed driveway and parking area would be constructed of compacted crushed concrete.
The remainder of works proposed involve the construction of two water tanks, one adjacent to the existing and the other adjacent to the proposed dwelling, a new 3m x 3m garden shed in the north eastern corner of the site and the provision of underground electricity to the dwellings. An existing power pole and the lean-to referred to above are to be demolished. In addition, landscaping works to enclose areas of private open space associated with the proposed dwelling and to screen a clothes drying area are proposed within the area between the existing outbuilding and the front property boundary.
The planning controls
The site is located within the Locality B2 Oxford Falls Valley under Warringah Local Environmental Plan 2000 (the LEP). Clause 3 of the LEP sets out the purposes of the plan and includes the following:
(b) to describe the desired characters of the localities that make up Warringah and relate the controls on development to the achievement of desired characters of those places,
Clause 12 details matters that are to be considered before consent is granted and reads as follows:
(1) Before granting consent for development the consent authority must be satisfied that the development is consistent with:
(a) any relevant general principles of development control in Part 4, and
(b) any relevant State environmental planning policy described in Schedule 5 (State policies).
(2) Before granting consent for development, the consent authority must be satisfied that the development will comply with:
(a) the relevant requirements made by Parts 2 and 3, and
(b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out.
(3) In addition, before granting consent for development classified as:
(a) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement, or
(b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement but nothing in a description of desired future character creates a prohibition on the carrying out of development.
Note. Before granting consent for development the consent authority must consider the matters set out under section 79C of the Act.
To assist with understanding: Category One development is development that is generally consistent with the desired future character of the locality, Category Two development is development that may be consistent with the desired future character of the locality, and Category Three development is development that is generally inconsistent with the desired future character of the locality.
The proposed development is category two development.
Control of built form is addressed in clause 18 of the LEP which states:
(1) Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement.
(2) Strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the desired future character of the locality.
(3) Nothing in this plan requires development to comply strictly with a quantitative requirement made in any general principle of development control.
Clause 20 of the LEP deals with development standards as follows:
(1) Notwithstanding clause 12 (2) (b), consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy.
(2) In localities A2, A4, A5, A7, B2, B9, C8 and C10, the minimum area per dwelling required by the housing density standard is deemed to be the minimum allotment size for allotments created by subdivision.
(3) Where consent is granted for development that does not comply with one or more development standards, the Council is to ensure that the circumstances of the case and reasons for granting consent (in such a way that does not comply with the development standards) are included in a public register of such consents.
(4) This clause does not apply in relation to a development standard relating to maximum building height established by the Building Heights Map within the Dee Why Town Centre Locality Statement (E21).
Part 4 of the LEP provides general principles of development controls and clause 71 is relevant to the application:
Parking facilities (visual impact)
Parking facilities (including garages) are to be sited and designed so as not to dominate the street frontage or other public spaces.
In particular:
- garage doors and carports are to be integrated into the house design where topography and other constraints of the site allow, and
- laneways are to be used to provide rear access to carparking areas where possible, and
- car parking is to be provided underground or in semi basements for apartment buildings and other large developments, and
- parking is to be located so that views of the street from front windows are not obscured.
Note. Individual Locality Statements may provide more detailed guidance regarding the location and design of carparking facilities.
The desired future character (DFC) for Locality B2 Oxford Falls Valley is provided in Appendix B of the LEP as:
The present character of the Oxford Falls Valley locality will remain unchanged except in circumstances specifically addressed as follows.
Future development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway.
The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.
A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape.
Development in the locality will not create siltation or pollution of Narrabeen Lagoon and its catchment and will ensure that ecological values of natural watercourses are maintained.
In addition to the DFC, there are a number of Built Form Controls that relate to the development as follows:
Housing density
The maximum housing density is 1 dwelling per 20 ha of site area, except:
(a) where this standard would prevent the erection of one dwelling on an existing parcel of land, being all adjacent or adjoining land held in the same ownership on 8 March 1974 and having a combined area of not less than 2 ha, and
(b) on Portions 199, 200, 985, 986, 1001, 1002, 1003, 1004, 1011, 1012, 1018 and 1019 Parish of Manly Cove and Lot 33 DP 870625 Pinduro Place, Cromer, where one dwelling may be erected provided the land exceeds 4,000m 2 in area and was lawfully created prior to 13 August 1982, or was otherwise lawfully created, and
(c) on land that adjoins a locality primarily used for urban purposes and on which a dwelling house is permissible, where there is no maximum housing density if the development is for the purpose of "housing for older people or people with a disability" and the development complies with the minimum standards set out in clause 29.
However, consent may be granted for development that will contravene these housing density standards but, if by more than 10 per cent, only with the concurrence of the Director.
The matters which shall be taken into consideration in deciding whether concurrence should be granted are:
(a) whether non-compliance with the development standard in issue raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the planning controls adopted by this plan.
To measure housing density:
- the site area (which does not include the area of any access corridor, whether such access corridor is to be created or is in existence at the time of application for development consent) is divided by the number of dwellings proposed on the site, including any existing dwellings which are to be retained,
- the site is the allotment which existed on the day this plan came into effect, and
- granny flats are not considered to be a dwelling and are limited to one per allotment.
In calculating housing density, the area of any access corridor (including any right-of-carriageway, access handle, accessway or other area that provides for vehicle access) is to be excluded, whether that access corridor is to be created or is in existence at the time of application for subdivision.
Front building setback
Development is to maintain a minimum front building setback.
The minimum front building setback to all roads is 20 metres. On corner allotments fronting Forest Way or Wakehurst Parkway the minimum front building setback is to apply to those roads and the side setback is to apply to the secondary road.
The minimum front building setback area is to be densely landscaped using locally occurring species of canopy trees and shrubs and be free of any structures, carparking or site facilities other than driveways, letterboxes and fences.
Rear and side building setback
Development is to maintain minimum rear and side building setbacks.
The minimum rear and side building setback is 10 metres.
The rear and side setback areas are to be landscaped and free of any structures, carparking or site facilities other than driveways and fences.
The council has prepared a draft Local Environmental Plan (the draft LEP) in accordance with the Department of Planning's directive to all councils in NSW to prepare one planning instrument for each local government area in accordance with the Standard Instrument (Local Environmental Plans) Order 2006 .
The draft LEP proposes that the site would be included in Zone E3 Environmental Management. The aims of that zone are:
- To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.
- To provide for a limited range of development that does not have an adverse effect on those values.
- To ensure that development, by way of its character, design, location and materials of construction, is integrated into the site and natural surroundings, complements and enhances the natural environment and has minimal visual impact.
- To protect and enhance the natural landscape by preserving remnant bushland and rock outcrops and by encouraging the spread of indigenous tree canopy.
- To protect and enhance visual quality by promoting dense bushland buffers adjacent to major traffic thoroughfares.
Of these aims, the first two are standard template clauses and the latter three are proposed clauses added to suit the council's local area. The draft LEP also contains similar provisions that limit dwelling density in the E3 zone to one dwelling per 20ha, consistent with the current planning controls for the site.
The draft plan has not been certified by the Department of Planning for exhibition.
The issues
The issues that remain following the s34 conference are:
- Whether the development is consistent with the DFC for the Oxford Falls Valley locality;
- Whether the development should be allowed taking into consideration the housing density standard for the locality and whether there is an overdevelopment of the site;
- Whether the proposed access and parking arrangements are satisfactory;
- Whether the development is consistent with the planning controls contained within the draft DCP, the weight to be applied to that plan and the strategic planning intent for the site and locality;
The evidence
Evidence was heard on site during the s34 conference from residents of the adjacent area. One resident spoke in support of the application and two opposed the development. The issues raised are summarised below:
- Development seeks to authorise works done prior to approval.
- Site has been cleared and trees removed;
- The area is rural-residential and the housing density should be complied with;
- Approval would create an undesirable precedent and encourage subdivision;
- Building is an eyesore and has been the subject of complaints in relation to leaking sewer;
- Bushfire concerns;
- Support another family in the area;
- Building has been there for 40 years;
- The site is in the city and the works will improve the look of the area;
- The area will eventually change;
- The applicant is only seeking one block.
The Desired Future Character
The planners agree that there will be no visual change to the form of the buildings on the site and that those buildings form part of the existing character of the area. Mr Cowan however, distinguishes the impact of the works as being the need to provide additional carparking and driveways to service the second dwelling, which he says infringes the council's controls as that parking and driveway is proposed within the building alignment area and will dominate the streetscape and alter the natural landscape, change the topography and built form of the land rather than provide opportunities for enhancing the natural landscape qualities of the site. His view applies to both parking options in evidence. He is also of the view that having two dwellings on the site will inevitably change the character of the area due to additional people, parking and traffic associated with the use, including the introduction of a second driveway and access point. For these reasons, Mr Cowan concludes the development would be inconsistent with the DFC.
Mr Sarrich disagrees and says that neither parking areas would dominate as the parking is proposed at grade, the site is wide and the area involved only utilises a small proportion of the frontage. He considers that the area of the site and its proximity to an adjacent urban area results in a low-intensity, low impact use. He is also of the view that as there is no natural vegetation on the lower portion of the site, and the grouping of the buildings minimises the impacts and the works proposed to upgrade the building will enhance its appearance and, with use of recessive colours, satisfy the DFC.
Housing Density
The parties agree that the housing density for the Oxford Falls Valley B2 locality is one dwelling per 20ha and that the density of the proposed development is one dwelling per 1.17ha, a variation of some 94.1%.
Mr Cowan says the purpose of the standard is to ensure that development comprises large lots resulting in less intensive development so as to ensure that ecological, scientific, cultural and aesthetic values of the locality are not disturbed. It is his opinion that allowing dwellings at the density proposed does not achieve that objective, would be inconsistent with the DFC, is not low intensity or low impact, would set an undesirable precedent for residential properties in the B2 locality and would erode the strategic intentions of the locality. Mr Cowan says the strategic intentions of the area and therefore the DFC is to ensure that development for the purpose of housing has regard to the provisions of the housing density standard to ensure the land remains non-urban, comprising open spaces, extensive natural bushland with interspersed pockets of development. The other purpose is to minimise impact on the Narrabeen Lagoon and limit the intensity of development.
Mr Sarrich considers that the location of the site adjacent to an established urban area presents a circumstance whereby an additional dwelling would not be contrary to the DFC, would not affect the strategic intention of the zone and would not provide a precedent to other landowners. He advised that there are many existing allotments in the B2 locality that have an area of less than 2.5ha and he is of the opinion that those lots have a dwelling house entitlement. Accordingly, he sees that the approval of two dwellings at the density proposed is not inappropriate. Mr Sarrich does not provide any evidence on what he envisages the DFC would look like, his view being limited to the existing scenario, stating that it will not change. He also cites other development within the vicinity of the site, which he says is more visually dominant than what is proposed.
The council provided a map of the locality (Exhibit 8) which shows the "existing parcels" as at 8 March 1974, being the "appointed day" when Interim Development Order No. 51 (the IDO) was gazetted. A report forming part of Exhibit A states that the IDO was made to control development tin the catchment area of Narrabeen Lagoon to protect the lagoon, predominantly by restricting the range of land uses permissible and establishing a minimum area for subdivision of land of 20ha, thereby limiting the intensity of land use. These provisions have been carried forward into successive planning instruments to date and remain current in the LEP. It is clear from that map that the majority of lots in the B2 locality do not enjoy dwelling entitlements and those that do are primarily located on the edges of the zone boundary.
The housing density provisions of the LEP allow variation to the development standard however, concurrence of the Director, Department of Planning is required where those variations exceed 10%. The views of the Department have been sought and the advice received is that because the matter is now the subject of an appeal to the Court, the Department is not in a position to provide a response to the council's request for concurrence. The letter acknowledges that the Court may exercise the Director's discretion in determining the matter. In accordance with the LEP, the matters that I must consider in determining whether the development standard should be varied are whether non-compliance with the development standard in issue raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the planning controls adopted by the LEP.
Mr Cowan concedes that there are no State or regional planning instruments that apply to the site however, he is of the opinion that allowing two dwellings on the site would undermine the strategic objectives of the area and he is of the view that the objectives go to a regional level. He considers that there is public benefit in maintaining the controls as this is the only way that the strategic planning objectives and the DFC can be guaranteed. Mr Sarrich considers that one more dwelling in this location has no strategic implications. He considers the site to be unique and that he would not support such a proposal elsewhere in the B2 locality. This is due to the proximity of the site to the existing urban area and the fact that the buildings are currently erected on the site. He acknowledged that the approval of the development may extend to an application by the owner of the land immediately to the west of the site to seek approval to convert an approved studio to a dwelling however did not consider there are wider implications as, in his opinion, the character of the area changes completely beyond these properties. Mr Cowan considers that there are many similar sites at the zone interface and accordingly, he maintains that there is public benefit in maintaining the density control so that the DFC is achieved.
Access and parking
As noted above, the applicant proposes the provision of an additional two parking spaces in the south eastern corner of the site. Mr Cowan considers that the location of those spaces is contrary to the provisions of clause 71 of the LEP in that the parking will dominate the street frontage due to its location within the front setback area and mean that the front building setback control which requires the area to be densely landscaped using locally occurring species of canopy trees and shrubs and free of any structures, carparking or site facilities other than driveways, letterboxes and fences, cannot be achieved. Mr Sarrich is of the opinion that the approved fence will screen the parking area and therefore there will be no adverse impact.
The draft LEP and strategic planning considerations
From the evidence available, it is apparent that there is no agreement between the council and the Department of Planning as to the future zoning of the B2 locality. It is the council's position that the area, including the site, should be zoned E3 Environmental Management however, the Department has advised the council that the locality should be a deferred matter under the LEP in order that further planning studies can be undertaken to ascertain the appropriate zoning for the land, including consideration of any areas suitable for urban development. I was advised that the current status of the LEP is in accordance with the council's resolution of 14 December 2010 when the council resolved in relation to the draft LEP that:
A. That Council not support the Draft Warringah LEP 2009 (in the form provided to Council on 7 December 2010) for the reasons detailed in this report and attachments and seek to resolve matters of disagreement with the Department of Planning prior to the plan being made.
B. That Council staff immediately seek a meeting with the Director General of the Department of Planning to discuss resolution of those matters of concern detailed in this report and attachments.
C. That Council expresses its concern to the Department of Planning in relation to the inadequate response period given by the Department which does not allow full and proper review (including community engagement) of the proposed changes to the Draft Warringah LEP 2009.
D. That this Council Seeks urgent independent legal advice from Senior Counsel as to the legal options available to restrain the Minister for Planning, The Hon Tony Kelly MLC and/ or the Department of Planning from changing the Warringah LEP against Warringah Council and its peoples' wishes and seek orders if necessary to ensure that Warringah Council's LEP as
prepared by Council is confirmed.
I was also advised that the council's officers are in discussion with departmental staff in relation to finalising the draft plan in order that it can be exhibited.
Mr Cowan is of the view that the council's position is clear and that the draft LEP is a matter that warrants consideration in the assessment of the application. Mr Sarrich is of the view that there is no certainty in relation to the future zoning of the land and accordingly little or no weight should be applied to the draft plan.
Conclusions and findings
In determining this issue, I follow the advice provided by His Honour Preston CJ in Retirement by Design Pty Ltd v Warringah Council [2007] NSWLEC 87 where, from para 53 he states:
53 In the local government area of Warringah, planning control and development is regulated by WLEP. Unlike other local environmental plans in New South Wales, WLEP does not separate land uses in a hierarchy based on land use type, such as dividing residential, business and industrial uses from each other in prescriptive zones. Instead, WLEP employs a multi-layer approach.
54 One layer is based on the concept of a locality. A locality is a discrete geographical area of land or water. Each locality is delineated on the plan map, mostly using street or property lines, to show the boundaries of the locality.
55 The criteria for delineating a discrete tract of land as a locality is, firstly, geographical and secondly, the character of the tract of land, both existing but more importantly, the desired future character of the tract of land.........
58 Within each of these geographical areas, tracts of land are further delineated based on the character of the land. The character of the land is influenced by both natural factors, such as physiographical and vegetative features, as well as human influences, such as the pattern of development, types of use and manner of development. The character of the land includes that in existence and importantly that which is desired in the future.
59 Proximately located lands of similar character are grouped into a locality and delineated from other land with a different character. The character of the locality is described in the locality statement for that locality.
It is clear that I must consider not only the existing character of the area but importantly, that which is the desired character of the area in the future. The discrete locality of the Oxford Falls Valley is one which currently comprises bushland interspersed by sparse development, primarily low density housing. It is clear from the DFC contained within the LEP that the future character for the area is one that envisages housing at a density of one dwelling per 20ha and not housing in close proximity as is proposed by this application.
Whilst I accept that the development as proposed would do little to alter the existing character of the area, I do not find that it achieves the character desired in the future. I also accept the view of Mr Cowan that the adjacent urban area is within a discrete locality and accordingly, whilst a relevant consideration, cannot be taken to allow any development of the site that is inconsistent with the DFC. The conversion of the outbuilding to a dwelling will necessitate further development taking place on the site including the provision of additional hardstand areas, parking and the like. It does not provide for the enhancement of the natural landscape, nor does it meet the objectives of the 20ha development standard. I do accept that the development would be low impact but I do not accept that there are any exceptional circumstances that would allow variation to the DFC and its housing density standards to the extent proposed.
In relation to the weight to be applied to the draft LEP, I do not consider that there is any level of imminence and certainty to that plan and accordingly, give it little weight.
In view of the current position of both the council and the Department, I do however find that there is public benefit in maintaining the planning controls adopted in the LEP, particularly as the evidence provided indicates those controls have been consistently applied to achieve the planning objectives first contemplated when the IDO was made in 1974.
The application, as it relates to the second dwelling on the site, fails for the reason that it is contrary to the desired future character of the low density non-urban locality and would be contrary to the planning intent and controls of the B2 Oxford Falls Valley locality.
I have been asked, that in the event that I find the application for the dwelling should be refused, to consider the remaining works proposed under the application. These are for the upgrading of the existing dwelling to meet BCA and bushfire standards and the construction of a carport above the approved carparking space adjacent to that dwelling. These works do not offend the DFC and should be allowed.
Orders
The Orders of the Court are:
(1) The appeal, in respect of lot 2 DP 27916, No. 66 Northcott Road, Cromer is upheld in part.
(2) Development Application No DA2009/1331 is approved for the following works only:
(a) Alterations and additions to an existing dwelling house including an attached carport, 5000 litre water tank and works to bring the building to accord with the requirements of the Building Code of Australia and Australian Standards AS3959-1999 - Construction of Buildings in Bush Fire Prone Areas;
(b) Construction of a 3m x 3m garden shed;
(c) Removal of an existing power pole and provision of underground electricity cables to service the existing dwelling;
(d) Demolition of an existing awning attached to the outbuilding and the installation of a 5000 litre water tank subject to the conditions included in Appendix "A".
(3) That part of Development Application No DA2009/1331, which proposed the conversion of an existing outbuilding to a dwelling house, is refused.
(4) The exhibits, other than exhibit B, are returned.
Sue Morris
Commissioner of the Court
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Decision last updated: 17 March 2011
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