Berezov v Warringah Council

[2008] NSWLEC 1103

Land and Environment Court

of New South Wales

CITATION:

Berezov v Warringah Council [2008] NSWLEC 1103

PARTIES:

APPLICANT
Dimitri Berezov

RESPONDENT
Warringah Council

FILE NUMBER(S):

11161 of 2007

CORAM:

Hussey C

KEY ISSUES:

Development Application :- subdivision, consistency with characters of area, view, lot size, future amenity.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Warringah Local Environmental Plan 2000

DATES OF HEARING:

03/03/2008

EX TEMPORE JUDGMENT DATE:

3 March 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr I. Hemmings, barrister
instructed by Mr J. Hones
of Hones La Hood

RESPONDENT
Mr N. Howie, solicitor
of Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

3 March 2008

11161 of 2007 Dimitri Berezov v Warringah Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

Background.

1 Mr Berezov has appealed against council's refusal of a 2 lot subdivision of non-urban land at 331 McCarrs Creek Road, Terrey Hills.

2 The existing allotment (Lot 1 DP 870192) is irregular in shape and has a total area of 5106 sq m. It contains 2 dwellings and approval for another dwelling, subject to the removal of the existing dilapidated cottage on the site.

3 The issues identified for the appeal concern:

• Whether the proposed subdivision is consistent with the desired future character of the area.
• Adequacy of the minimum lot sizes.
• Suitability of the land for subdivision, considering the effects of fragmentation of the land and amenity impacts.

4 These issues have been addressed in a joint planning conference report prepared by Mr N Fletcher (Consulting town planner) and Mr N England (Councils development assessment officer).

5 Following the commencement of the proceedings, further discussions were undertaken by the parties, resulting in their agreement to consent orders.

6 This proposal is to subdivide the existing Lot 1 and create:

• Lot 1: with an area of 1979 sq m, containing a new house as approved and built. It also contains the existing house that is to be demolished, which would then allow construction of a swimming pool and tennis court.
• Lot 2; with an area of 3128 sq m. this lot is to contain and approved 2 storey house adjacent to an existing garage attached metal roof awning.

7 The proposed common boundary between these two new allotments allows a 1m setback to the tennis court and a 1m setback to the existing awning and associated driveway.

• Warringah Local Env. Plan 2000.

Desired future character.

8 It appears from the evidence that council's main concern is that proposed allotments are under sized and do not satisfy aspects of the desired future character statement for this designated A5 Locality. The relevant part of the character statement is:

LOCALITY A5 McCARRS CREEK ROAD

Desired Future Character

The McCarrs Creek Road locality will remain a non-urban area consisting of detached style housing in distinctly non-urban settings and occasionally businesses or community uses that are compatible with the non-urban nature of the locality and predominant scale of existing development…

9 The parties agree that the other parts of this statement are not relevant.

10 Mr England’s concern is that the proposal will fragment the existing allotment and hinder the potential for future non-urban or non-residential land use, because these developments generally require a substantial area of land to support the primary and ancillary activities.

11 However it seems to me that this concern about orderly development of the land, is addressed by the applicant's acceptance of a condition of consent, which requires the new dwelling on Lot 2 to be substantially commenced i.e. built to above floor level, prior to issue of the Subdivision Certificate. In this event, it is most likely that the future character of this immediate area will comprise 2 dwellings on relatively large non-urban allotments.

12 From the view, it appears to me that the immediate area surrounding the subject lot, near Mona Vale Road, comprises a mix of development whereby:

• The property to the east contains a commercial landscape/pavers outlet,
• The property to the south east one allotment and contains 2 separate restaurants,
• The property to the north is a relatively narrow 12m wide allotment containing in a dwelling.
• The properties to the north along McCarrs Creek Road, then generally larger allotments obtained dwellings and ancillary structures consistent with non-urban amenity.

13 I am satisfied then from my understanding of this control and observations, that the construction of the new dwelling on Lot 2, together with the existing dwelling on Lot 1, will be generally consistent with the desired future character of the area. This is also consistent with council’s decision to approve the dwelling on Lot 2, which can be constructed, but not yet subdivided.

Subdivision lot sizes

14 The concern about subdivision allotment sizes arises because cls 12(2)(b) 20(2) of the LEP, links this to the minimum site area for a dwelling in this area, which is 2ha. It seems to me that some discretion can be exercised in this part of Locality A5, taking into account the existing form and character of development. This is consistent with the opinion of Mr Fletcher, who says that as the housing density of the subject site has already been created by the approval of two dwellings and associated improvements, then the housing density standard has already been created on the site and the minimum requirement of 2ha is no longer relevant, because the proposed subdivision will not alter the built form or character of the site locality.

15 In my assessment, I agree with Mr Fletcher's opinion that the subdivision will not affect the desired future character of this area, subject to the implementation of the existing approvals. Therefore I consider it reasonable to approve the 2 lot subdivision.

Amenity impacts

16 Insofar as I consider the subdivision can satisfy the desired future character requirements, nevertheless I acknowledge Mr England’s concern that the amenity impacts between the two allotments is unsatisfactory. This arises because the proposed tennis court only proposes a 1m side boundary setback and will likely involve some cut and fill. Likewise, the existing metal awning only proposes a 1m wide side boundary setback. I do not consider that the approval of this relationship is consistent with the character statement, where the dwelling houses are generally well setback from side boundary and contain substantial vegetative screening. That could not occur with the proposal.

17 However, as I noted initially the further discussions between the parties leading to the agreement to consent orders is dependent on following matters:

• The applicant completing the dwelling on Lot 2 as approved by Council and progressing the building to above slab level,
• The awning being demolished prior to issue of the Subdivision Certificate,
• The approval for the tennis court being surrendered,
• The demolition of the existing, dilapidated dwelling on Lot 1, prior to of the Subdivision Certificate,
• Compliance with other standard conditions of development consent.

18 Accordingly, I am satisfied that compliance with conditions of consent that achieve these matters, then the proposal is consistent with the relevant desired future character statement and that cl 20 discretion can be exercised to allow conditional consent for this 2 lot subdivision.

19 By consent , the Court orders

1 The appeal is upheld

2 Development consent is granted to DA No 2006/0353 for the subdivision of allotment Lot 1 DP 870192 into two allotments and associated works subject to conditions of consent in annexure ‘A’.

3 The exhibits may be returned except 1, 2 and A.

Note. The Court notes the paries agreement to pay their own costs.

___________________

R Hussey
Commissioner of the Court
ljr