Betts v Sutherland Shire Council
[2012] NSWLEC 1334
•05 December 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Betts & anor v Sutherland Shire Council [2012] NSWLEC 1334 Hearing dates: 26 November 2012 Decision date: 05 December 2012 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal dismissed
Catchwords: DEVELOPMENT APPLICATION; Subdivision; SEPP 1 objections - lot area and width; environmental impacts Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1 - Development Standards
Sutherland Shire Local Environmental Plan 2006
Threatened Species Conservation Act 1995Cases Cited: Parrott v Kiama [2004] NSWLEC 77
Wehbe v Pittwater Council [2007] NSWLEC 827Category: Principal judgment Parties: Daryl & Judith Betts (Applicants)
Sutherland Shire Council (Respondent)Representation: Mr H El-Hage (Barrister) (Applicant)
Ms J Amy (Solicitor) (Respondent)
Solicitors
Lander & Rogers (Applicant)
Sutherland Shire Council (Respondent)
File Number(s): 10753 of 2012
Judgment
COMMISSIONER: In February 2012, Sutherland Shire Council refused development application (DA11/1219) for the Torrens Title subdivision of Lot 6 DP 1155637, also known as 53 Seabrook Avenue Grays Point, into two lots.
The applicants are appealing this decision under s 97 of the Environmental Planning and Assessment Act 1979 (the Act).
The site and its locality
The site is located at the south-western end of Seabrook Avenue, Grays Point. The street ends in a cul-de-sac and the site is on the upper side of the street.
The existing allotment has an area of 1,752 m2. It is generally rectilinear in shape however the northern side boundary is irregular. The street frontage or eastern boundary is 30.99 metres wide.
The site is a vacant lot with remnant bushland, some of which has been disturbed by the dozing of a fire/access trail and the construction of a concrete right of way and associated retaining walls. The site contains 13 trees including two large hollow-bearing Eucalyptus pilularis (Blackbutt). The site is characterised by sandstone outcrops and floaters.
The site slopes steeply from the street up a sandstone scarp to an area that has been partially levelled and graded and then continues up a series of embankments. The western boundary of the site adjoins the eastern boundary of several vacant and vegetated lots of a sub-division on the eastern side of Greenhaven Road. The eastern portions of these lots are steeply sloping. Greenhaven Road runs along the top of the ridge; The Royal National Park is on the western side of Greenhaven Road and about 65 m from the site.
The western side of Seabrook Avenue is characterised by large two storey dwellings at street level with bushland at the rear on the steeper portions of the lots. On the south-eastern side are a number of similarly large two storey dwellings which step down the slope.
To the south of the site are two large and long sites which are heavily vegetated and contain dwellings at their North West Arm Road end.
The outlook is generally to the east to the headwaters of the North-West Arm of the Hacking River.
The proposal
The applicants propose to subdivide the single lot into two lots. Proposed Lot 11 is a standard (street frontage) lot with an area of 835.9 m2 and a width of 15.29 m. The plans show an indicative elevated two-storey dwelling and a two-car garage with hardstand for two vehicles at street level.
Proposed Lot 12 is to be accessed via the existing concrete paved right of way at the eastern side of the lot. The area is 918.8 m2 with a frontage of 15.7 m. The indicative dwelling is a part two, part three storey dwelling with the garage and hardstand at the lowest level.
The eventual construction of both dwellings, garages and ancillary structures would necessitate excavation into the sandstone scarp and the removal of trees.
As the site is within a Bush Fire Prone area, the Rural Fire Service has conditioned an asset protection zone (APZ) to extend to the northern, eastern and southern boundaries and to 20 m to the west of the western elevation of the building envelope. The inner protection area is to be 10 m wide. The APZ to the south extends across the two adjoining lots.
The area at the rear (western end) of each block is proposed to be protected (by restrictive covenants) as an Environment Protection Zone.
The contentions
The council raises the following contentions in the Amended Statement of facts and Contentions as reasons for refusing the development application:
1. Non-compliant lot size - width and area; SEPP 1 objections not well- founded;
2. Unacceptable environmental impacts;
3. Visual impact;
4. Overdevelopment;
5. Matters raised by objectors including drainage, safety, site stability, parking, traffic, impacts on wildlife, impacts on trees, privacy, and streetscape.
The planning framework
The site is zoned Zone 1 - Environmental Housing (Environmentally Sensitive Land) in Sutherland Shire Local Environmental Plan 2006 (SSLEP). The relevant objectives of the zone (cl 11) are:
(a) to allow development of a scale and nature that:
(i) compliments the natural landscape setting of the zone, and
(ii) protects and conserves existing vegetation and other natural features of the zone,
(e) to allow the subdivision of land only where the size of the resulting lots makes them capable of development that will not compromise the sensitive nature of the environment.
SSLEP cl 28 Subdivision - consent requirements - is relevant. This states relevantly:
(1) Despite clause 11, land to which this plan applies may be subdivided, but only with consent.
(2) Consent must not be granted to the subdivision of land in a zone unless the consent authority has considered the relevant objectives of the zone specified in clause 11.
Clause 39 sets the minimum size of lots for dwelling houses. Subclause 2 states:
39(2) The area, width and depth of a lot of land to which this clause applies on which it is proposed to erect a dwelling house are not to be less than the minimum area, width and depth specified in the following Table:
The Table in cl 39 indicates that the minimum area for a standard frontage lot in the zone in which the site is located is 850 m2 (i.e. proposed Lot 11) with a minimum lot width of 18 m and a minimum lot depth of 27 m. For internal lots (i.e. proposed Lot 12 having access off a right of carriageway), the minimum area is 1000 m2, width 18 m and depth 27 m.
Clause 37 deals with the objectives of clauses 39-42. These are:
(a) to ensure that a new lot created for the purpose of a dwelling house has a sufficient area available for:
(i) a dwelling house and ancillary facilities, and
(ii) an outdoor recreation and service space, and
(iii) vehicular access to and from the site,
(b) to ensure that a sufficient area is available for building setbacks to reduce the effect of radiated heat from bush fire on bush fire prone land,
(c) to ensure that newly created lots provide adequate building area to accommodate the type of dwellings that are proposed to be built on such lots,
(d) to ensure the area and width of lots are sufficient for their intended purpose and provide sufficient space for negative externalities to be resolved on site,
(e) to ensure that a sufficient area of land is available, in connection with development, for landscaping, drainage and parking so as to achieve a satisfactory residential amenity,
(f) to ensure new development complements the established scale and character of the streetscape where the development is carried out, and does not dominate the natural qualities of its setting.
As the proposed lots are smaller in area and narrower than the controls in cl 39(2) SSLEP, the applicant lodged objections in accordance with cl 8(3) of SSLEP and s 6 of State Environmental Planning Policy No 1 - Development Standards (SEPP 1).
The site is identified as 'Greenweb Restoration' in Sutherland Shire Development Control Plan 2006 (SSDCP) - Chapter 4: Natural Resource Management. According to the SSDCP:
Greenweb is a strategy to conserve and enhance Sutherland Shire's bushland and biodiversity by identifying and appropriately managing key areas of bushland habitat and establishing and managing interconnecting linkages and corridors.
Restoration areas ...provide opportunities for the establishment and vegetation of corridors between core areas.
Clause 1.a.1.1 provides the objectives for all development in Greenweb areas. The relevant objectives pressed by council are:
a. to prevent direct loss of habitat in core and support areas by requiring the retention or restoration of areas of habitat in a size and configuration that will enhance long term sustainability.
b. to prevent fragmentation of bushland by requiring the landscaped component of a site to function as a wildlife corridor, linking proximate areas of core habitat.
Map 27 - Greenweb (Amendment No 6) shows the Greenweb Restoration area linking the Greenweb Core areas of Royal National Park to the west and the headwaters of North West Arm of the Hacking River to the northeast. The Greenweb Restoration area includes the site and properties to the north, south, east and west.
The hearing and the evidence
The hearing commenced on site. The owners/ occupiers of the two adjoining properties made oral submissions. The owner of the adjoining property to the north (#51) voiced concerns over possible damage to his property as a result of excavation of sandstone during the construction of any future dwellings. He is also concerned about the traffic and parking problems that may arise as a result of two dwellings rather than one.
A resident of # 50, the property to the east of the site, also raised a number of objections concerning the additional impacts arising from two dwellings rather than one. These include: the removal of most of the trees on the eastern side of the lot; potential impacts on wildlife known to move between dwellings on the eastern side of the street, across #50 and onto the applicants' land; privacy - overlooking of bedroom and bathrooms windows; parking and traffic concerns; safety issues arising from the narrowness, steepness and proximity of the right of way to the western boundary of #50; rock fall during construction works (as happened when the right of way was constructed); additional water run-off; and concerns about the general appearance and amenity of the proposal.
The site was inspected and the proposed boundaries were noted. The parties' experts discussed possible impacts of future dwellings on a number of trees including a Blackbutt on proposed Lot 11, a large Blackbutt on proposed Lot 12, and a "co-dominant" pair of trees - an intertwined Eucalyptus punctata (Grey Gum) and Angophora costata (Sydney Red Gum) growing on the adjoining property to the south approximately 1 m from the site's southern boundary. Discussions included the likely extent of excavation into the sandstone scarp for the purpose of constructing double garages with hardstand parking for two vehicles.
The site was traversed along the dozed access track. An aboriginal heritage item (rock shelter) was noted to the west of the site. The adjoining lots on the Greenhaven Road subdivision were noted, as was the proximity to Royal National Park.
Mr Stephen McMahon gave planning evidence for the applicants and Ms Christine Edney for the council. Environmental evidence was given by Mr Dominic fanning for the applicant and Mr Geoff Doret for the council. All four experts prepared a joint report.
Planning issues
The planning issues arise primarily from the non-compliance with the development standards in cl 39 SSLEP for lot width and area and the adequacy of the SEPP 1 objections. While the application is for subdivision, the lots will be used for residential dwellings; this gives rise to the consequential issues of overdevelopment, visual impact, and the matters raised by objectors.
Mr McMahon's opinion is that the SEPP 1 objections are well-founded and that strict compliance with the controls for area and width are unnecessary as there is no evidence that the proposed development could not achieve objectives (a)(c) and (d) in cl 37 SSLEP. He contends that the nominated building envelopes indicate that each proposed lot could accommodate a dwelling and associated facilities, a relatively level area at the rear for private outdoor recreation, good solar access and views.
In his opinion potential privacy issues from overlooking are not significant as there are no living/private open space areas on the western side of #50. In regards to the proposed garages and off-street parking arrangements, these could be accommodated with appropriate sensitive landform modification and would meet the neighbours' concerns. He considers the proposal would retain the tree canopy at the rear that is consistent with retained vegetation on neighbouring lots and therefore maintain the existing street character. Mr McMahon considers that while the eventual dwellings would be smaller than those nearby they would be sufficiently large to accommodate a conventional family household.
Mr McMahon contends that two smaller dwellings with setbacks could be visually more appealing and of less visual impact than a single compliant dwelling on a large lot. In regards to the council's concerns about over-development, in his view the variations in lot sizes and width are minor and in the context of the surrounding pattern of subdivision are not unusual. In support of this opinion Mr McMahon raised the examples of the recently registered subdivision on Greenhaven Road, the lots of which have non-compliant widths, as well as a couple of smaller lots in the locality. He also contends that the indicative dwellings achieve the controls in the SSLEP.
In essence, the council considers the SEPP 1 objections are not well founded in that the applicant has failed to demonstrate how the indicative developable area on each proposed lot will satisfy objectives (a),(c)-(f) in cl 37 of SSLEP. In council's view, the proposal does not satisfy those objectives or the relevant zone objectives. Ms Edney's view is that the smaller, restrained, non-compliant lots will not provide the potential for dwelling houses of a size that could reasonably be expected in the zone.
To support her opinion she includes a table as Appendix 1 of the joint report in which she summarises the site areas, widths, floor area, FSR, building description, DA numbers and tree removal or retention summary for 16 approved and developed lots in Seabrook Street. By her calculations, the indicative buildings are significantly smaller than all but one other dwelling; she argues that given the size and nature of the existing dwellings, that future purchasers of either proposed lot will have similar expectations for their dwellings. While the table indicates that all except possibly one dwelling were approved prior to the current SSLEP, the lots are all compliant with the current controls in terms of area and width.
In Ms Edney's opinion, a compliant dwelling on a single lot would be capable of achieving the objectives of c 37 as well as the zone objectives. Whereas, two compliant dwellings on smaller lots will collectively have a greater impact, visually and environmentally, result in over-development of the site, and make it more difficult to achieve the objectives. In further support of her view Ms Edney applied the sliding-scale controls in SSLEP for Building density- Maximum gross floor area in Zone 1 of 2 (cl 35(5)) and landscaped area (cl 36(3)) for the proposed two lots and the existing single lot. These calculations are summarised below.
Lot
Area (m2)
GFA (m2)
Landscaped area (m2)
Proposed Lot 11
835.9
334.36
376.155
Proposed Lot 12
918.8
360.64
420.84
Lots 11 + 12
1754.7
695
797
Existing lot
1752
583
934.8
Ms Edney considers that refusal of the application would not prevent the orderly and economic development of the land as it is capable of supporting one dwelling. In regards to the Greenhaven Road subdivision she states that this was approved in 1995 and therefore the current controls did not apply.
Environmental issues
The relevant contention is that the applicant has failed to adequately demonstrate how each proposed lot is capable of accommodating a dwelling house and ancillary facilities in a sensitive manner that conserves the natural features of the locality and respects the Greenweb Restoration listing of the property. In particular, the council contends that the development, including the required APZ will result in the removal of substantial canopy trees and bushland vegetation in an environmentally sensitive area.
At the outset, Mr Fanning stated that as the application is for sub-division, in itself, approval would have no environmental impacts. However, the discussion on site and in court focussed on the two large Blackbutts and the 'co-dominant' Grey Gum and Angophora. Mr Fanning and Mr Doret consider than regardless of whether one or two dwellings were constructed, the Blackbutt on proposed Lot 12 would need to be removed/ reduced because of structural defects.
Mr Doret applied AS 4970-2009 Protection of Trees on Development Sites and calculated likely incursions of the indicative dwellings and garages into the nominal tree protection zones and structural root zones of the co-dominant trees and the Blackbutt on proposed Lot 11. In his opinion, these trees would need to be removed. Mr Fanning considers that both trees could be retained with engineering solutions and or by relocating the garages. In his opinion, even if the hollow-bearing Blackbutt on proposed Lot 11 were removed, it would not be significant because the site is only a minute component of the natural environment in the region and tree hollows can be salvaged and used elsewhere on the site.
In regards to the Greenweb Restoration status of the site, Mr Doret contends that excessive development of the site would lead to direct loss of native vegetation, hollows, escarpments and rocky outcrops, all of which provide habitat, and also to fragmentation and loss of connectivity. This he says would compromise the site's ability to function in the Greenweb and be in conflict with the objectives and controls of the strategy. In his view the proposal would result in a number of Key Threatening Processes as listed in the Threatened Species Conservation Act 1995 (TSC Act) and contribute to the cumulative loss of habitat.
In Mr Fanning's opinion, the functionality of the Greenweb Restoration Area in the vicinity of the site is already compromised because of the existing roads, dwellings, driveways etc as well as by rocky cliffs. He considers that whether one or two dwellings are constructed the impacts would be similar, other than a greater ability to retain some of the large trees if only one dwelling were constructed. If there were two dwellings, in his view the design and landscaping could function for Greenweb purposes. In regards to the applicability of Key Threatening Processes, Mr Fanning considers that these only apply to threatened species and are not intended to be applied broadly.
Submissions
Mr El-Hage for the applicants submits that the SEPP 1 objections in regards to lot area and lot width are well-founded and that strict compliance with the development standards are both unreasonable and unnecessary because the objectives of those development standards are achieved - notwithstanding the non-compliance with the controls. He contends that they satisfy the approach outlined by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827. He relies on the opinions of Mr McMahon but stresses that the extent of non-compliance is minor and the nominated building envelopes are compliant with the applicable controls and not so small as to deter future purchasers. He contends that strict compliance with cl 39(2) would result in a much larger residential dwelling that would have a greater visual impact on the streetscape. The proposal in not unreasonable in the context of the wider neighbourhood.
In regards to the environmental issues, Mr El-Hage contends that the site has already been partially cleared and disturbed. He relies on Mr Fanning's opinion that a similar disturbance will occur if one dwelling is constructed and that taking the broader view, the removal of vegetation will be insignificant given the many thousands of hectares of nearby bushland that is subject to statutory protection. He objects to an assertion by Mr Doret that the proposal would add to the cumulative loss of habitat, particularly the removal of the hollow-bearing Blackbutt on proposed Lot 11. He contends that the council is indirectly asking the Court to apply the precautionary principle, which in his view is inappropriate as the thresholds of 'serious or irreversible' environmental harm and 'scientific uncertainty' [Telstra Corporation Ltd v Hornsby Shire Council [2006] 67 NSWLR 256, Preston CJ at [129]-[130], [134], [138]-[141], [149]] are not satisfied and, in the light of Mr Fanning's evidence, the impact of the removal of the Blackbutt would be de minimus.
With respect to visual impact and overdevelopment, Mr El-Hage argues that the proposal would result in development consistent with the surrounding properties and that two smaller dwellings are likely to have less visual presence when compared to the very large houses on other lots.
In conclusion he stresses that the application is for a subdivision and the location of dwellings and garages is only conceptual but sufficient to show that the objectives can be achieved. Whoever buys the lots will have to accept the constraints of the site. At this stage, there can only be speculation as to what the environmental impacts may be. Whenever a development application for a future dwelling is submitted, the council will have to assess the proposal against council's controls; in his view, that will be the appropriate time for the details to be determined.
Ms Amy for the council contends that the SEPP 1 objections are not well founded and that compliance with the developments standards for site area and width is not unreasonable and that the existing site is capable of supporting a dwelling and associated structures and therefore, this achieves the relevant objects of the Act.
She contends that compliance with the development standards is necessary given the many constraints on the site including being on bushfire prone land, being mapped as environmentally sensitive land, and the proximity of trees on the adjoining site to the south. Creating two narrow lots would exacerbate these constraints and make it more difficult to construct dwellings and ancillary facilities and compromise the Greenweb linkage strategy. One dwelling on the lot would result in better environmental outcomes by enabling the retention of more trees, a point made by Mr Fanning in the joint report, as well as being likely to lead to less fragmentation of bushland and retain more connectivity in accordance with the Greenweb strategy.
Ms Amy states that the applicants' reliance on the narrower lots on Greenhaven subdivision to justify the proposal is not relevant as that development was approved in 1995, well before the current controls.
Ms Amy cites the Planning principle in Parrott v Kiama [2004] NSWLEC 77. In her view, as in the matter in Parrott, the proposed allotments are smaller than usual and on environmentally sensitive land. While the applicants have provided an indication of the location of dwellings, garages etc, there is still much speculation as to the environmental impacts as there are no details as to how the limits of the site could be addressed.
In conclusion, the council's position is that one dwelling on the site achieves the balance between development and the environment as envisaged in the zone objectives.
Findings
The SEPP 1 objections
In Wehbe Preston CJ considered the process of determining SEPP 1 objections. At [36](citation omitted) he states:
36 This means that in order for the Court, exercising the functions of the consent authority, to have power to grant development consent to the applicants proposed subdivision, it must uphold the SEPP 1 to compliance with clause 11(2) of PLEP [a clause relating to subdivision in a residential zone]. Upholding the SEPP 1 objection is a precondition which must be satisfied before the proposed development of subdivision can be approved on the consideration of the merits.
In paragraphs [37] - [41] of Wehbe Preston CJ considers the requirements to uphold a SEPP 1 objection and then from [42] - [52] discusses the ways of establishing that compliance is unreasonable or unnecessary.
Section 6 of SEPP 1 requires the applicant to demonstrate that compliance with the particular development standard is unreasonable or unnecessary in the circumstances of the case, specifying the grounds of the objection. Section 7 enables a consent authority to grant consent to the development application if the consent authority is satisfied that the objection is well founded and is consistent with the aims and objectives of SEPP 1 insofar as they do not hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Act. These objects relate to the proper management, development and conservation of resources and the orderly and economic use and development of land. The onus on the applicant to satisfy the decision maker that the objection is well founded.
The applicants in this matter have adopted what Preston CJ in Wehbe at [42]-[43] considers to be the most commonly invoked way of establishing that compliance with a development standard is unreasonable or unnecessary. That is, to argue that the objectives of the development standard are achieved notwithstanding non-compliance with the standard.
43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).
Clause 39 of SSLEP and the table contained therein sets the minimum sizes of lots for dwelling houses. Clause 37 states the objectives for the development standards. In essence, the objectives require that a new lot for a dwelling house: has sufficient area for the dwelling, ancillary facilities, outdoor recreation, service space and vehicular access to and from the site; provides adequate building space to accommodate the type of dwellings proposed to be built; is wide and large enough to accommodate negative externalities on site; has sufficient room for drainage, landscaping, parking etc to achieve satisfactory residential amenity; and ensures the new development compliments the existing scale and character of the streetscape and does not dominate the natural qualities of the setting.
In addition, cl 28(2) of SSLEP requires the consent authority to consider the relevant zone objectives before consent is granted for a subdivision. Of these, objective (e) for Zone 1 - Environmental Housing (Environmentally Sensitive Land) encapsulates the issue before the Court:
(e) to allow the subdivision of land only where the size of the resulting lots makes them capable of development that will not compromise the sensitive nature of the environment.
In this matter the parties have diametrically opposed views on the adequacy of the SEPP 1 objections. After considering the evidence and submissions, and with the benefit of the site inspection, I find that I am unable to reach the conclusion that in the circumstances of this case it would be unreasonable or unnecessary to comply with the development standards for lot width and area. I find that the SEPP 1 objections are not well founded and that the relevant objects of the Act are not hindered.
In this matter, the applicants rely on the SEPP 1 objections in the Statement of Environmental Effects (SEE) that accompanied the Development application. That application also includes plans showing the indicative location and size of dwellings and ancillary structures such as garages on each of the proposed lots. On the basis of these plans, the applicants simply say that the width and the area of the proposed lots meet each of the objectives in clause 37 of the SSLEP.
While the plans submitted with the DA show dwellings with compliant setbacks etc, I agree with the council that there is insufficient detail or supporting material to demonstrate how future residential development will meet the relevant zone objectives, and, in particular, not compromise the sensitive nature of the environment.
The site is zoned Zone 1 Environmental Housing (Environmentally Sensitive Land). The Table in cl 39 of SSLEP shows this zone to have the largest lot sizes of all residential zones and equally the largest lot widths and length (with Zone 2 - Environmental Housing (Scenic Quality)). This is presumably to protect the environmentally sensitive aspects of the zone.
Mr El-Hage stresses that this appeal is in regards to a sub-division and that the most appropriate stage to consider specific details and impacts is when a development application is lodged for each dwelling. While I agree with this, I also accept Ms Amy's submission that the Planning Principle in Parrott is appropriate.
In Parrott at [17] the former Senior Commissioner Roseth stated in part:
...I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive, or where significant impacts on neighbours is likely and needs careful design to minimise them.
In my view, the site is heavily constrained by its topography, geology, presence of significant trees - both on the lots and on adjoining land, and being in a fire risk area. Access to proposed Lot 12 is additionally constrained by the narrow elevated right of way. While the applicants argue that the extent of non-compliance is relatively minor, I consider that the constraints are such that the non-compliance, particularly with the width of the lots, would compromise the sensitive nature of the environment and would not protect and conserve the existing vegetation and other natural features of the zone, particularly the sandstone scarp and outcrops. That is, the proposal does not meet the relevant zone objectives.
In coming to this conclusion I am helped by Ms Edney's calculations summarised in the table at [36]. This table shows the significantly greater cumulative impact of two compliant dwellings on the proposed non-compliant lots compared with one compliant dwelling on the current compliant single lot. I agree with the council, that a single compliant dwelling would enable greater separation between the future dwelling and the adjoining dwelling to the north thus achieving greater residential amenity. A single dwelling would also enable a more flexible approach to its design to ensure the greater retention of natural features including rock outcrops and mature trees as well as more realistically achieve the desired outcomes of the Greenweb strategy.
I agree with Ms Edney that the smaller restrained lots will not provide the potential for dwelling houses of a size that could reasonably be expected in the zone. While bigger is not necessarily better I agree that given the existing development in the street, there will be an expectation that larger dwellings are appropriate. However, in saying this I note that most of the dwellings in the street were approved prior to the current controls. In my view a single dwelling on the existing lot will also provide future residents with enough room to create private open spaces that are of a size and nature more consistent with those found on neighbouring properties.
With the expertise I bring to the Court, I do not share Mr Fanning's optimistic view that the large hollow-bearing Blackbutt on proposed Lot 11 can be successfully retained by an engineering solution. Similarly, in my view, given the extent of excavation that will be required to construct a double garage, hardstand and manoeuvring area off the right of way on proposed Lot 12, the retention of the 'co-dominant' Grey Gum and Angophora on the adjoining lot to the south would be very difficult.
As discussed previously, the applicants rely in part on the non-compliant width of other nearby lots. They also rely in part on the fact that the length of the lots is more than double the minimum lot length. Their view is that strict compliance is both unnecessary and unreasonable and that strict compliance would mean that the land cannot be used to its best advantage for a purpose permissible in the zone and encouraged by s 5 of the Act.
I do not accept the applicants' proposition that compliance with the development standards is unreasonable because there are other smaller lots in the general vicinity. It is clear from the evidence that the smaller lots, especially those in Greenhaven Road, were approved before the current LEP was adopted. Having seen the approved lots on Greenhaven Road, I also note that those sites are far less constrained (being less steep and more readily accessible from the street) than those the subject of this appeal.
I also agree with the council that the current lot is capable of supporting a compliant residential development that achieves the objects of the Act in s 5(a)(i) and (ii).
Therefore on this basis I am not satisfied that the objections under SEPP 1 should be upheld and the subdivision cannot be approved. As noted by Preston CJ in Wehbe upholding a SEPP 1 objection is a pre-condition that must be satisfied before the appeal can be considered on its merits. Therefore, beyond the matters I have discussed in coming to my conclusions in regards to the SEPP 1 objections, I do not propose to address the more specific environmental issues raised by the parties' experts or the other contentions raised by council and the residents that would normally considered in a merits assessment under s 79C of the Act.
Orders
The Orders of the Court are:
(1) The appeal is dismissed.
(2) Development application DA11/1219 for the Torrens Title subdivision of Lot 6 DP 1155637 - 53 Seabrook Avenue Grays Point into two lots is refused.
(3) All exhibits except E and 4 are returned.
________________________
J Fakes
Commissioner of the Court
Decision last updated: 05 December 2012
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