Beky v Leichhardt Municipal Council - [2006] NSWLEC 329

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Beky v Leichhardt Municipal Council [2006] NSWLEC 329

PARTIES:
APPLICANT
Dorothy Beky and Louis Beky
RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S): 10415 of 2006

CORAM: Hoffman C

KEY ISSUES: Appeal :- Strata subdivision, non-compliance with landscaped area standard, non-compliance with subdivision development standard, non-compliance with clause 30 subdivision of land, streetscape and urban design, non-compliance with clause 3 of LEP 2000

LEGISLATION CITED: Leichhardt Local Environmental Plan 2000
State Environmental Planning Policy No. 1
Development Control Plan 2000
State Environmental Planning Policy No. 10

CASES CITED: Smith v Wollondilly, 86 LGERA 437;
Golden v The Minister of Transport, 121 LGRA 101

DATES OF HEARING: 03-04/07/2006

EX TEMPORE JUDGMENT DATE: 07/04/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr G Long, solicitor
RESPONDENT
Ms J Walsh, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

4 July 2006

10145 of 2006 Dorothy Beky and Louis Beky v Leichhardt Municipal Council
JUDGMENT

1 This is a class one appeal No. 10145/2006, between Dorothy and Louis Beky and Leichhardt Council in regard to the deemed refusal of DA No. D/2005/435 for a strata subdivision of No. 89 Foster Street, Leichhardt.

2 The lot has two detached dwellings on it and rises a metre or so from the front to the rear. The site is rectangular with a frontage of 9.23 m and a depth of 45.7 m. It tapers slightly to the rear, the boundary of which is 7.9 m long.

3 The existing house at the street has zero setback on the north side boundary and 1.4 m side setback on the south. An access path runs along the south boundary to the front door of the street-front house called house 2 on the plans, and then runs onwards to the front verandah of house 1 at the rear. House 2 is a single storey dwelling and is proposed to be extended at the rear to provide a new large living and dining area, directly off the rear yard. The existing living and dining area are to become a bedroom, new bathroom and kitchen area. House 2 is not to be changed at all.

4 The second existing house, house 1 on the plans, is 600 mm to 1.5 m from the rear boundary with a small retaining wall to the uphill neighbour. The side setbacks are almost zero on the south side and about 900 mm on the north side. The rear setback area is used as a service yard. The second house, called house 1, is a single bedroom house with living, dining, bathroom and kitchen all designed to be disabled accessible. The pathway leading to it along the south boundary is also disabled accessible.

5 The council approved house 1 in the rear yard of house 2 in 2001. The approved plans show the yard space between the two houses as a common open space. The original application to the council had said in the covering statement of environmental effects and the council reports that it was to be used for accommodating aged relatives. Since that time, a fence and gates had been erected along the access pathway from the street and across the width of the backyard to create two private courtyards, one for house 1 and the other for house 2.

6 The owners and applicants of the houses are now residing in the Bathurst area and seek to have the subdivision created, ostensibly to pay for the extensions to house 2 so that the properties can be further dealt with. The houses are now rented separately.

7 In the subdivision, the access pathway becomes common property and the fence between the courtyards becomes the common boundary between the strata lots. This makes the house 1 lot at the rear 167 sq m, the house 2 lot at the front 190 sq m and the common property pathway 36 sq m, giving a total existing lot of 393.7 sq m.

8 The issues are:

Non-compliance with Floor Space Ratio Standard - Leichhardt LEP 2000
1. The proposed development does not comply with the floor space ratio development standard of 0.5:1 set out in cl 19(2) of the Leichhardt Local Environmental Plan 2000 for the Leichhardt area.

Particulars:

(a) The front dwelling at No. 89 Foster Street (with its proposed alterations and additions) would result in a floor space ratio of 0.67:1.

2. An objection pursuant to State Environmental Planning Policy No. 1 with respect to cl 19(20 of LEP 2000 has not been lodged with the Court, without which the proposal cannot be supported. Further, such an objection would not be supported.
Particulars:
(a) The proposal does not comply with the relevant general objectives and housing objectives which are set out in clauses (13)(1)(b) to (c); (13)(2)(a), (c) and (d) and (17)(a), (b) and (c) of the Local Environmental Plan. Generally the said objectives relate to the proper design of the built environment to minimise negative impacts for development on the physical and historical environment, maintaining/enhancing the amenity of the immediate surrounds and the quality of life for existing and future residents, protecting the area’s character, meeting the principles of good urban design and maintaining amenity respectively. The housing objective relates to ensuring that new housing is consistent with the surrounding built environment and takes into account the suite of controls in Leichhardt Development Control Plan 2000 (‘DCP 2000’) to achieve the desired future character, the provision of landscaped areas that are of a size and location suitable for the use and enjoyment of residents and the provision of a minimum residential allotment size in order to protect the area’s subdivision pattern.
(b) Although it is acknowledged that no restriction on the use of the rear dwelling exists, council approval of the rear dwelling in D/2000/771 was justified in planning terms on the basis that the application was for a ‘granny flat’ accommodation and ancillary to the front dwelling on the site. This is most evident by virtue of the existing joint open space area (without fencing between the dwellings) that was approved under the original development application, D/2000/771.

Non-compliance with Landscaped Area Standard - Leichhardt LEP 2000
2. The proposed development does not comply with the Landscaped Area development standard set out in cl 19(3)(a) of LEP 2000.

Particulars

State Environmental Planning Policy No. 1

Non-compliance with Subdivision Development Standard – Leichhardt LEP 2000

Particulars

(a) The proposal for a strata subdivision of the subject land would result in a front and rear allotment with areas of 190.2 sq m and 167.6 sq m respectively, breaching the minimum site area permitted.

State Environmental Planning Policy No. 1

Particulars

Non-compliance with clause 30 Subdivision of Land – Leichhardt LEP 2000

Particulars

Environmental Planning and Assessment Act 1979.

Streetscape and Urban Design

Non-compliance with clause 7(3) of LEP 2000

8. The proposal should not be approved as it is not consistent with the relevant objectives of LEP 2000 set out above. Clause 7(3) provides:

Consent must not be granted for development in the zone unless the consent authority has taken into consideration such of the objectives of the plan as are relevant to the proposal and is satisfied that the development is consistent with those objectives.

9 I believe in issue 1(a), the correct council calculation of front dwelling floor space ratio was 0.6:1.

10 The respondent’s evidence was heard from Ms D Laidlaw, consultant town planner. The applicant’s evidence was heard from Mr G Vickas, consultant architect. The summary of the issues are:

1. The subdivision pattern, diversity versus homogeneity.
2. Numerical compliance with the site area, landscaped area, minimum lot size and floor space ratio, depending on the interpretation of the definitions of those items under the applicable statutes.
4. Clause 19(4) of the Leichhardt LEP 2000, on whether the minimum lot size applies to this strata subdivision.

11 The proposal was advertised and there were no objectors.

12 Ms Laidlaw said the minimum area for subdivision of land is 200 sq m per lot under the Leichhardt LEP 2000 and DCP 2000. Neither proposed lot complies.

13 Mr Vickas said the minimum lot size does not apply to a strata subdivision.

14 The respondent says the exclusion in cl 19(4) of the Local Environmental Plan only applies to strata lots in buildings such as individual apartments where the normal size ranges from 60 sq m to 110 sq m between one-bedroom and three-bedroom flats. They can occur, one above the other, in a multi-storey building directly above the same piece of land.

15 The applicant says the strata legislation allows subdivision of land as well as subdivision of buildings and this proposal to subdivide the two houses from each other, that is subdivide the buildings from each other, involves a land component in each lot but that is incidental as it is in most strata plans that involve common property land and courtyard land attached to individual units.

16 In the respondent's opinion, the case of Smith v Wollondilly, 86 LGERA 437, Bignold J, is relevant as it confirms that a strata land allotment is a lot for the purposes of assessing the allowable minimum lot size in a subdivision under the Leichhardt Local Environmental Plan.

17 The respondent says the proposed house lots are substantially below the 200 sq m minimum and that brings in the consideration of the objective of the residential zone under the Local Environmental Plan. Principal amongst these in cl 17 are cl 17(a):

To provide development standards to ensure the density and landscaped areas of new housing are complementary to and compatible with the pattern of surrounding buildings, works and landscaping and taking into account the suite of controls in the Leichhardt Development Control Plan 2000 to achieve the desired future character.
Clause17(c): To provide a minimum residential lot size to protect the area’s diverse subdivision pattern.

18 The applicant draws attention to the continuation of cl 17(c) which says in effect, “and to ensure the orderly and economic use and development of residential land”.

19 I will return to the applicant’s points later.

20 The respondent refers then to the future character of the area in Development Control Plan 2000 for West Leichhardt Distinctive Neighbourhood and cl A10.2.2, especially the preservation of the consistency of the subdivision pattern in this area and to maintain the prevalence of street trees in addition to visually significant trees on private land.

21 The respondent puts that West Leichhardt is historically the least dense of the whole Local Government area and this is reflected in the floor space ratio brought in under LEP 2000 of 0.5:1. Other parts of the municipality are 0.6 and 0.7:1. In the subject proposal, house 2 on its lot would have a floor space ratio of 0.6:1 and house 1 would be 0.39:1.

22 Not only is house 2 non-compliant on density and therefore future character, the respondent says any new owner of house 1, which is the one-bedroom house, would have some expectation under the precedent case of Golden v The Minister of Transport, 121 LGRA 101 by Lloyd J, of enlarging it to 0.6:1, making the whole site too dense and consuming the yard space now available that forms part of the greater green space on private land in the West Leichhardt distinctive character area.

23 This could be seen in the aerial photo in Exhibit B the respondent said. Also the respondent said under the precedental case, any of the other nearby similar lots would have an expectation for strata subdivision of their land and development to the non-complying floor space ratio.

24 The applicant’s evidence on this is that the calculation of floor space ratio for a strata development is on the whole site area as referred to in the Local Environmental Plan and as calculated through the definition of floor space ratio and gross floor area. On that basis, Mr Vickas says the council is wrong to deduct the area of the proposed common property access pathway lot in doing its calculation. When the whole site is included, the total floor space ratio is below 0.5:1 and if the access pathway lot adjoining the length of house 2 is included in the house 2 land, then house 2 has a floor space ratio of 0.5:1.

25 On those bases the applicant says there is no non-compliance. The true floor space ratio is below 0.5:1 for the whole development and the minimum site area is complied with for the whole development. The total site is 393.7 sq m when the requirement is 200 sq m and the total landscaped area and deep soil planting area requirements are also complied with on an overall basis. The applicant says the development therefore must comply with the desired future character for West Leichhardt under Development Control Plan 2000.

26 The applicant points to the Exhibit B aerial photo of the locality to say the physical effect of the subdivision will be almost indiscernible. The proposal will enable house 2 to be updated to better fit the streetscape and to provide better internal amenity and complies with cl 17(a) (c) and (d) of the Local Environmental Plan. Then, with the provision of disabled accessible dwelling in house 1 for purchase, it complies also with cl 17(d).

27 Mr Vickas went so far as to claim house 1 would be affordable housing. I fail to appreciate that as I had no evidence under State Environmental Planning Policy No. 10 of median rental figures for the locality and what house 1 is currently rented for. In any case, taking a dwelling out of the rental market and making it saleable often promotes it out of the range of persons needing affordable housing.

28 In coming to a conclusion on this matter, there are a number of preliminary decisions to be made. On the question of minimum lot size I conclude that Smith v Wollondilly has little to give to this case. It really only decided if an allotment referred to under a planning instrument is the same as a lot under a strata plan. It is, and the allotment or lot to be referenced here is the total site of 393.7 sq m. The minimum lot size is complied with. The floor space ratio calculation shows the overall site area is also complied with.

29 There are a number of strata titled townhouse developments and some dual occupancies in the locality that the Court was shown and the strata plans of subdivision tendered in Exhibit F. I am sure their compliance calculations would have been done by the council using the total lot area and not under the method put by the respondent in this case. The subdivision pattern shown by the cadastral maps in Exhibit 1 tab 3 will remain the same in the event of an approval. They do not show the strata plan subdivision within each principal lot.

30 If the strata plans were to show the detail of the strata plans on the cadastral map, the diversity of subdivision types in the locality would be more evident.

31 On those cadastral maps, any strata plan site has boundaries in pink compared to Torrens Title lots in black. It is notable that the strata lots are much larger than the subject site and are, it would seem, consolidated sites with townhouses and courtyards and common open space on them, preserving the balance of green space to building that is a characteristic of West Leichhardt. It seems to me the respondent's important evidence goes more to the objectives in cl 17(a) that go to density and landscaped area being complementary and compatible with buildings, works and landscaping to achieve desired future character of West Leichhardt.

32 Also, the important evidence of the respondent goes to cl 17(b) to provide landscaped areas suitable for substantial tree planting and of a size and location suitable for the use and enjoyment of residents. The importance of this can be seen in the respondent's draft condition to move the proposed common strata lot boundary about 4 m east towards house 1. Currently the boundary is proposed on the existing fence line across the middle of the so-called backyard between house 2 and house 1.

33 There is only one substantial tree on the site and it is in the backyard between the two houses. The tree should be preserved with substantial space around it to grow.

34 House 2 is being enlarged to occupy about half of the existing courtyard it currently has. Most of the remaining courtyard is occupied by a clothesline. Garbage bins would need to be stored in the courtyard as there is no garage or on-site parking area.

35 The respondent raises no issue about any need for on-site parking, presumably because both houses exist and council did not raise it when approving house 1 in 2001. The respondent does say, however, that the original approval in 2001 showed the backyard undivided as common open space, shared by house 1 and house 2.

36 The mid-yard fence erected since was put by the applicant as being exempt development, but the respondent showed in Exhibit 7 that the fence is not exempt development and should not form any precedent for the location of the proposed strata title lot boundary.

37 One can appreciate house 2 becoming a comfortable three-bedroom home and house 1 being a one-bedroom home. The need for the larger private courtyard rests with house 2. As proposed, house 1 would have a courtyard double the size of house 2. Also there is logic in the respondent’s evidence that a future purchaser of house 1 may seek to expand it and use the argument that house 2, from a practical standpoint although not a statutory one, occupies 60% of its lot while house 1 occupies only 39 percent of its lot as proposed.

38 The respondent put that the boundary between the two courtyards should be as shown in Exhibit G and I agree with that. It means each house occupies nearly 50 percent of its strata lot and gives a proportional balance to the courtyards that matches the number of bedrooms while still meeting the council overall landscaped area and deep soil planting area for the total site. It also coincidentally means, even on the council’s argument on floor space ratio, that each house would almost comply on its own lot.

39 The substantial tree, in relation to the relocated boundary would then be close to the common boundary and that should keep it on the edge of activity areas in both courtyards and give it greater certainty of surviving to make its contribution to the character of the locality. The open space on the allotment is less likely to be reduced by any further building on either lot and therefore continues to provide its role in keeping West Leichhardt character to a density set by the floor space ratio of 0.5:1. The total site being managed by a body corporate give some further assurance that the owners of the houses will maintain the status quo in future.

40 Ms Laidlaw drew to my attention that the verandah on house 1 is included in its courtyard area, so the applicant’s argument that Exhibit G moves the boundary too close to house 2 is not correct. The relocated fence will be a little over 5 m from house 1. The plans would need to be amended to show the relocated boundary and fence and the set of steps in the original 2001 approval from the lower courtyard of house 2 to mount the existing small retaining wall to give access to the upper level. This set of steps had never been built in accordance with the original consent.

41 I conclude that an approval in this case with suitable conditions will not cause a precedent as no other lot in the area was shown to have a second detached house approved by council on it. The 2001 consent was not termed as a granny flat. It was for “a single storey dwelling within the rear yard of existing dwelling.” There was no condition restricting its use to members of the same family.

42 After the hearing, the respondent forwarded revised conditions of which the applicant contested only Condition 3(b), which I retain for the reasons given above and add Condition 3(c) to require steps in the house to courtyard also referred to above.

43 Therefore, the orders of the Court are:

1. The appeal is upheld.

2. Development consent is granted to alterations and additions to one existing house and Strata Subdivision on No. 89 Foster Street, Leichhardt, to place the two houses on the site into separate strata lots with a common property access lot as shown in drawing No. 20605 by Federation Drafting Services dated June 2005 and Strata Plan No. 05127 by Philip Hooi Surveyor dated 12 September 2005 all as amended by and built in accordance with the conditions in Annexure “A” hereto.

3. The exhibits are returned except Exhibits A, B, F, G, 2, 3, and 4.

___________________

K G Hoffman

Commissioner of the Court

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Beky v Leichhardt Municipal Council [2006] NSWLEC 329

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CITATION:	Beky v Leichhardt Municipal Council [2006] NSWLEC 329
PARTIES:	APPLICANT Dorothy Beky and Louis Beky RESPONDENT Leichhardt Municipal Council
FILE NUMBER(S):	10415 of 2006
CORAM:	Hoffman C
KEY ISSUES:	Appeal :- Strata subdivision, non-compliance with landscaped area standard, non-compliance with subdivision development standard, non-compliance with clause 30 subdivision of land, streetscape and urban design, non-compliance with clause 3 of LEP 2000
LEGISLATION CITED:	Leichhardt Local Environmental Plan 2000 State Environmental Planning Policy No. 1 Development Control Plan 2000 State Environmental Planning Policy No. 10
CASES CITED:	Smith v Wollondilly, 86 LGERA 437; Golden v The Minister of Transport, 121 LGRA 101
DATES OF HEARING:	03-04/07/2006
EX TEMPORE JUDGMENT DATE:	07/04/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr G Long, solicitor RESPONDENT Ms J Walsh, solicitor SOLICITORS Pike Pike & Fenwick