Alexander v Hornsby Shire Council

[2012] NSWLEC 1165

Land and Environment Court

New South Wales

Medium Neutral Citation:

Alexander v Hornsby Shire Council [2012] NSWLEC 1165

Hearing dates:

15 May 2012

Decision date:

19 June 2012

Jurisdiction:

Class 1

Before:

Whelan AC

Decision:

(1)The appeal is dismissed.

(2)The development application number DA/809/2011 to subdivide and existing allotment into two allotments at No. 8 Frith Avenue Normanhurst, is refused.

(3)The exhibits are returned with the exception of exhibit 1, 2 and A.

Catchwords:

DEVELOPMENT APPLICATION - appeal against the refusal of a development application - Subdivision - insufficient information - allotment design

Legislation Cited:

Hornsby Shire Local Environmental Plan 1994
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Robert Alexander (Applicant)

Hornsby Shire Council (Respondent)

Representation:

Counsel
Mr P Jackson (Respondent)

Mr K Willis, Agent (Applicant)
Solicitors
Pikes Lawyers (Respondent)

File Number(s):

10035 of 2012

Judgment

1. COMMISSIONER: This is an appeal against the refusal of development application DA/809/2012 for a Torrens Title subdivision of one allotment into two. The property is 8 Frith Avenue Normanhurst.

1. The proposal is for the land to be subdivided to create a front lot (72) of 505 sq m and a rear lot (71) of 500.25 sq m. Access to the rear lot is proposed via a battle-axe configuration including a 3 m wide right-of-way.

1. Hornsby Shire Council refused the application on the basis that it failed to comply with the Residential Subdivision Development Control Plan. Council's refusal sighted provisions relating to density, allotment design, setbacks, private open space, access-way design, soil and water management and drainage control. Further, Council assessed that the application was deficient in not including; a stormwater concept plan, architectural plans, a contour plan (prepared by a registered surveyor) or an erosion and sedimentation plan.

1. The appeal was set down for Conciliation/Arbitration under s 34AA of the Land and Environment Court Act 1979 (the Act). The matter was listed for 15 May 2012.

1. During the Conciliation stage, the parties failed to reach an agreement and the Conciliation Conference was terminated pursuant to s 34AA(2)(b) of the Act. The proceedings were thereafter conducted under s 34AA(2)(b)(i) and considered the information presented during the Conciliation Conference. The parties agreed that the proceedings be conducted on site.

The Site

1. The subject site comprises a single allotment known as Lot 7 in Deposited Plan 14691. The total area is 1081 square metres. Current access is gained via an existing driveway fronting Frith Avenue. This driveway is located along and parallel to the eastern boundary. A single-storey dwelling with an attached granny flat is located to the front of the site. Vegetation includes exotic, native and locally indigenous trees.

1. The site adjoins low-density residential developments along the north, south and eastern boundaries. A nursing home and hostel accommodation of two and three-storeys is located opposite the site.

Zoning

1. Under Hornsby Shire Local Environmental Plan 1994, the land is zoned Residential A (Low Density). The use of land for the purposes of subdivision is permissible with consent (cl 7). A relevant objective of the LEP is to provide for development that is within the environmental capacity of a low-density residential environment. The site is also located in the vicinity of a Heritage item under Schedule B of the Hornsby Shire Local Environmental Plan 1994.

View

1. The proceedings involved a view of the subject site and nearby properties. Mr Timmins from the adjoining property, immediately behind the subject land, expressed concerns about overland flow from the subject land. He pointed out that the land slopes downwards towards his property. Another objection was made by Mr Beattie, his property adjoins Mr Timmins' land. Mr Beattie's concern, as expressed by Mr Timmins, is about the likely loss of amenity and privacy. He also had concerns about stormwater runoff from the subject land.

Background

1. The development application was lodged with Hornsby Shire Council on 4 August 2011. During the exhibition period written submissions were received from Mr Timmins and Mr Beattie. On 21 September 2012, Hornsby Shire Council refused the Development Application.

Evidence

1. A Joint Experts Report was prepared by Mr Ken Willis, Applicant's Town Planner and Mr Peter Clare Engineer for the respondent. The report was finalised following a meeting of the experts on 6 March 2012. The Experts response to specific contentions is summarised as follows:

(1)   "Whether an engineering plan is required to be submitted with the application".

1. Mr Willis is of the view that such details are required after consent has been given. In particular, he is of the view that issues related to sire runoff can be addressed later. If an easement for water is required then Council will have to approve the arrangements.

1. Mr Clare stated that Council's Residential Development Control Plan (DCP) requires the applicant to show the proposed method of stormwater control from the proposed subdivision. No details as to the location or technical aspects of this proposal had been provided.

1. Council's Residential Subdivision DCP does not require a proponent to create the easement prior to the issue of the development consent. However, Council does require prior agreement from downstream property owners for the creation of such an easement.

(2)   "Whether the proposed 3 m wide right of access is acceptable"

1. Mr Willis is of the view that a three metre wide access is adequate for any registered motor vehicle.

1. Against this, Mr Clare relies on the objectives of the "access way design" element of the Residential Subdivision DCP, which provides that the access way should form an integral part of the overall design of the subdivision and should be landscaped and treated to reduce the visual and environmental impact of the hard paved areas. Mr Clare states that the provision of a four metre wide easement would allow for greater visual amenity, ease-of-use and augmentation of future services.

(3)   Whether the applicant provided insufficient information:

1. Council's expert, Mr Clare, maintains that this contention had not been addressed by the Applicant in respect of the following:

(a)   A survey plan has not been submitted with correct contour levels, current improvements on the site and details of all adjoining developments.

(b)   A preliminary stormwater concept plan prepared by suitably qualified consultant detailing the proposed method of stormwater disposal from of the site had not been submitted.

(c)   Architectural plans including elevations detailing the proposed alterations to the existing dwelling on Lot 72 had not been submitted.

(d)   A Demolition plan detailing the proposed removal of a proportion of the existing dwelling had not been submitted.

(e)   An erosion and sediment control plan prepared by a suitably qualified and experienced consultant had not been submitted.

(f)   The subdivision plan is inadequate in that it had not been prepared by a registered surveyor. The plan has not been correctly dimensioned and there are incorrect contours shown.

The Experts substantially agreed on these matter:

• that the contours shown are incorrect.
• to determine the exact location of existing dwelling on the site is imperative, given the proposed location of the new boundary.
• that the setbacks from existing and proposed boundaries have not been shown.
• that the Lot areas have been incorrectly calculated and that the site areas are in error.
• that the front and rear dimensions are incorrect.
• that the site area of proposed Lot 71 may be below 500 m², as a result of the incorrect dimensions and that a SEPP 1 objection may be required.

FINDINGS

1. The critical issues in this matter concerns the requirement of the applicant to provide adequate detailed information to support the proposed subdivision. Whilst this issue was discussed during the Appeal, it remained the view of the applicant that most of his concerns could have been addressed by way of "Conditions of Consent".

1. It became apparent that the information provided in the application was deficient. The applicant admits that the contours shown are incorrect. The applicant admits that the setbacks from the existing and proposed boundaries have not been shown. The applicant admits that the Lot areas have been incorrectly calculated and that the site areas are in error.

1. I agreed with Mr Clare's view that Mr Willis has provided insufficient information and thus fails to comply with their Residential Subdivision DCP. The application did not address and provide a survey plan prepared by a registered surveyor, with correct contour levels. Nor did the application provide details of current improvements and adjoining developments.

1. The application did not provide a preliminary stormwater concept plan prepared by a suitably qualified consultant dealing with the proposed method of disposal of stormwater from the whole of the development site. As the land clearly slopes away from the street, any overland stormwater will find its way onto the adjoining neighbours' land. The application failed to provide an erosion and sediment control plan to address this issue.

1. I agree with Mr Clare that issues related to impact of stormwater runoff should have been addressed in the application and a report provided to enable the Council to assess the impacts, particularly in relation to adjoining properties.

1. Having considered the evidence put before the Court I further believe that the information provided by the applicant was not accurate. By way of example, the total site area of 1081 square metres does not equate with the sum of the two proposed allotments being 505 and 500.25 square metres respectively. In an application to subdivide an existing allotment into two lots, one serviced by a right of carriageway, it is essential that the plan submitted be accurate.

1. The application is deficient and does not comply with the requirements of the Development Control Plan in relation to:

• density;
• allotment design;
• setbacks;
• private open space;
• accessway design;
• soil and water management plan; and
• drainage control.

Orders

1. The Orders of the Court are:

(1)   The appeal is dismissed.

(2)   The development application number DA/809/2011 to subdivide and existing allotment into two allotments at No. 8 Frith Avenue Normanhurst, is refused.

(3)   The exhibits are returned with the exception of exhibit 1, 2 and A.

M C Whelan

Acting Commissioner of the Court

Decision last updated: 19 June 2012