Brendan Howell v City of Canada Bay Council (No 2)

[2005] NSWLEC 684

Land and Environment Court

of New South Wales

CITATION:	Brendan Howell v City of Canada Bay Council (No 2) [2005] NSWLEC 684
PARTIES:	APPLICANT: Brendan Howell RESPONDENT: City Of Canada Bay Council
FILE NUMBER(S):	10903 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Whether appropriate to delete condition and subdivide under Torrens title
LEGISLATION CITED:	Drummoyne Local Environmental Plan 1986, (DLEP) Drummoyne Comprehensive Development Control Plan 1999 Environmental Planning and Assessment Act 1979 s 97 and 79C
CASES CITED:	Brendan Howell v City of Canada Bay Council [2005] NSWLEC 335; Stockland Developments Pty Limited v Manly Council [2004] NSWLEC 472 (3 August 2004)
DATES OF HEARING:	22/11/2005
DATE OF JUDGMENT:	11/30/2005
LEGAL REPRESENTATIVES:	APPLICANT: Ms H Irish, barrister instructed by Mr J A Strati, solicitor SOLICITORS: Avendra Singh Strati & Kam RESPONDENT: Mr P M Jackson, solicitor SOLICITORS: Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

30 November 2005

10903 of 2005 - Brendan Howell v City of Canada Bay Council (No 2)

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the City of Canada Bay Council (the council) to approve a development application to demolish the single dwelling on the land, to subdivide the land, and erect attached dwellings at Lot 9, DP 7156, being No 400 Lyons Road, Russell Lea. In granting Development Consent No 486/04, the council attached Condition 3, which prohibits subdivision of the land. The attaching of this condition to this consent, which is stated by the council as being and in effect is for, an attached dual occupancy on the land, dissatisfied the applicant and hence the appeal.

2 I had previously visited the land in company with the parties on the occasion of the first s 96 hearing that I had dismissed.

3 I have concluded that the present Class 1 application should not succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979 for reason of each lot size being inadequate in size.

The land

4 The land is situated on the northern side of Lyons Road. The frontage of the land is 15.24m the depth is 45.72m and the area is 696m2. Erected on the land is a single two-storey dwelling house.

5 Nearby are other residential buildings set on regularly shaped allotments. Although the area is predominantly residential there are some commercial uses and multi-unit housing uses nearby.

Relevant planning controls

Drummoyne Local Environmental Plan 1986, (DLEP)

6 Under the provisions of the DLEP, the land is zoned 2(a) Residential and subdivision, as an innominate use, is permissible with consent. There are no applicable standards applying to the proposed subdivision under the DLEP, [Note: Exhibit 2]. These are found in the comprehensive development control plan.

Drummoyne Comprehensive Development Control Plan 1999, (CDCP)
7 The council adopted the CDCP on 21 September 1999, effective from 13 October 1999, and last amended 13 July 2004 effective 20 August 2004, [Note: Exhibit 6].
8 The objectives of the CDCP are to: [Note: Exhibit 6, p 6]
· build upon the Drummoyne Local Environmental Plan 1986 by providing detailed objectives, performance criteria and minimum standards for residential commercial and industrial development;
· foster ecologically sustainable development;
· ensure development responds to the qualities of the subject site;
· ensure development responds to the character of the surrounding neighbourhoods;
· minimise negative impacts of development on the amenity of adjoining properties;
· encourage innovative housing, commercial and industrial design;
· maintain and enhance the natural, built and cultural significance of heritage items; and
· provide a balance between flexibility and certainty in the assessment process;
· ensure future developments will provide for a community that considers the needs of all people who live work and visit the Drummoyne area, including those people with disabilities.

9 There is an explanation under Part 6.1 – residential development of the CDCP:

Attached and detached dual occupancy have been re-introduced to promote housing affordability in the Residential 2(a) zone while maintaining the existing streetscape. Detached dual occupancies can be subdivided where the site area of 700m2 or more is available.

10 Under Part 6.1 for residential development the general objectives of the Residential 2(a) zone in CDCP are to, [Note: Exhibit 6, p 46]:

O1 encourage a mix of housing styles and types that complement Drummoyne’s different urban characters; and
O2 accommodate demand for additional housing in a way that reflects the character of Drummoyne; and
O3 promote housing that incorporates the principles of ecologically sustainable development; and
O4 encourage innovation in housing design;
O5 minimise negative impacts of development on the amenity of adjoining properties; and
O6 conserve the natural, built and cultural significance of identified heritage items and conservation areas; and
O7 retain and enhance vegetation and significant trees to maintain the leafy character of Drummoyne.

11 Following these objectives are Tables 6.1 and 6.2 that give an overview of the primary planning controls for several residential building types. Table 6.1 – overview of primary planning controls for single dwellings, attached dual occupancy, detached dual occupancy and villa houses in Drummoyne states, the minimum allotment size for single dwellings and attached dual occupancy is 450m2; the minimum frontage (excluding hatchet blocks) is 14m; FSR is 0.5:1 in 2(a) zones only; site coverage 65%; minimum setbacks front, 4.5m or in line with adjoining development; rear 6m; side 900mm for single and 1.5m for two-storey; height two-storey; maximum unarticulated wall length of 12m; 40m2 private open space with a 5m minimum dimension and 1 resident car space per dwelling. There are also requirements for detached dual occupancy of minimum allotment size of 700m2 and 14m minimum frontage width, (excluding hatchet shaped blocks and 12m with rear lane access).

12 The note following Table 6.1 reads: “Subdivision requirements for single allotments are included in Table 6.3”. Table 6.2 of the CDCP deals with residential flat buildings and is not relevant to a consideration of the present matter.

13 Part 6.2 – subdivision and allotment size of the CDCP has an explanation that, [Note: Exhibit 6, p 49].

Subdivision is the division of land into two or more parts for separate occupation, use or disposition.
Subdivision of land is usually followed by its development for one or more dwellings. Under the Environmental Planning and Assessment Act 1979, subdivision is defined as development. As such development consent is now required for all proposals involving subdivision.
Objectives

O1 to ensure subdivision reflects and reinforces the predominant subdivision pattern of the area; [Court’s emphasis added]:
O2 to ensure that subdivision creates lots that are oriented where practicable to enable microclimatic management, including the application of energy conservation principles (see Part 3 of DCP);
O3 to encourage a variety of lot sizes to promote housing choice.

Performance criteria
P1 lot size and dimension should be able to accommodate a dwelling and provide adequate opens space and car parking consistent with the relevant requirements of this DCP;
P2 lot size and dimension should take into account the slope of the land and existing vegetation identified in the site analysis (see Part 2 Understanding Drummoyne of the DCP);
P3 lot size and dimension must enable dwellings to be sited to protect natural or cultural features including heritage or cultural features including heritage items and retain special features such as trees and views.

Minimum standards – subdivision
M1 Table 6.3 – Subdivision – minimum area and frontage

Allotment type	Minimum area	Minimum frontage to street
Normal allotment	450m2	14m
Hatchet shaped	450m2 (excluding access aisle)	4m


Please note: This minimum allotment size does not apply to approved dual occupancies. [Note: Exhibit 6, p 49].

14 Under Part 6.5 of the CDCP, the building envelope provisions require for attached dual occupancies a minimum frontage of any newly created lot of 14m, [Note: Exhibit 6, p 53, Minimum standard M1]. Under that same part of the CDCP, for detached dual occupancy, the minimum frontage standard is 14m, except for lots with rear lane access where the minimum is 12m, and minimum site area of 700m2, [Note: Exhibit 6, p 56, Minimum standards M1 and M2]. There is a note to the detached dual occupancy provisions of the CDCP, [Note: Exhibit 6, p 56]:

Only approved detached dual occupancies on sites of 700m2 and over can be subdivided. Subdivision approval requires a separate development application. Subdivision approval cannot be issued prior to the approval of a detached dual occupancy.

15 Under Part 6.5 building envelope, of CDCP and the heading single dwellings and attached dual occupancy, the primary planning controls for several residential building types in Table 6.1 are reiterated, including, [Note: Exhibit 6, p 53-4]: M1 the minimum frontage of any newly created lot is 14m; M2 the site coverage of buildings on the site including garages, car ports and garden sheds is limited to a maximum of 65% of the site area. Following is the note that “…attached dual occupancies cannot be subdivided”.

The proposal and its history

16 Development application No 486/04 was lodged with the respondent council on 4 August 2004 to demolish the single dwelling, subdivide, erect attached dwellings on the land.

17 The applicant proposed to subdivide the land along the centreline in a north - south direction with a frontage width of each of 7.62m and the area of each proposed subdivided lot of 348m2.

18 Each dwelling house would be two-storeys in height and would comply with the planning controls applying to the land for attached dual occupancies with a floor space ratio, (FSR) of 0.5:1.

19 Condition 3 of Development Consent No 486/04 issued on 16 December 2004 prohibited subdivision of the approved dual occupancy. The applicant is dissatisfied with the determination of the council in imposing this condition and has appealed the consent and the appeal is afresh or de novo.

20 The applicant had sought to modify the consent under s 96 of the Environmental Planning and Assessment Act 1979 on 14 February 2005 to delete Condition 3 in the following terms:

Subdivision:
This approval does not include approval to subdivide the subject property.

(Reason: Information).

21 This modification application was refused by the council and dismissed by the Court, [Note: See Brendan Howell v City Of Canada Bay Council [2005] NSWLEC 335 decision dated 24 June 2005].

Notification

22 The development application to erect two dwelling houses on the land was notified to nearby owners and occupants between 16 August 2004 and 30 August 2004, and the council received no submissions. The council in its notification letter stated that the development application is “…for demolition of an existing dwelling and construction and subdivision under Torrens title of an attached dual occupancy at the above property”.

The council’s decision

23 By notice dated 16 December 2004, the council approved the development application for an attached dual occupancy and imposed conditions including, [Note: Exhibit 3, Tab 10, p 65]:

24 The council by notice dated 24 March 2005 for the following reasons refused the present Class 1 application:

1. Pursuant to Section 79C(1)(a)(iii) of the

Environmental Planning and Assessment Act 1979 the proposal does not comply with the minimum lot size and minimum frontage to the street contained within the Drummoyne Comprehensive DCP.

2. Pursuant to Section 79C(1)(c) of the

Environmental Planning and Assessment Act 1979 the subject site is not suitable for subdivision as it would create undersized allotments that would not be able to accommodate future development in accordance with the applicable planning controls.

25 The appeal was filed on 4 August 2005 against the present Class 1 application.

26 At the hearing the court heard evidence on behalf of the respondent council from:

· Ms K Idle, Specialist Assessment Officer, Canada Bay Council, who also prepared the statement of basic facts.

27 No expert evidence was given on behalf of the applicant.

The issues

28 On 14 September 2005, the council filed a statement of issues.

Suitability of the site for subdivision

Particulars:

Precedent
2 Whether the proposed subdivision, if approved, will act as an unsatisfactory precedent for future developments.
Particulars:
(a) There are a number of dual occupancy developments existing within the City of Canada Bay Council area.
(b) The proposed allotments are not consistent with the predominant subdivision pattern of the locality, and approval of the proposed subdivision would lead to a change in the subdivision pattern and development character of the locality.

29 The following emerged as the principal-contested issue:

· Is it appropriate to delete Condition 3 and to permit the applicant to subdivide under Torrens title the land having regard for the provisions of the CDCP?

The evidence and findings

Is it appropriate to delete Condition 3 and to permit the applicant to subdivide under Torrens title?

30 Mr Jackson, solicitor for the respondent council, sought to clarify the ‘legal framework’ within which the Court must consider this s 97 appeal in Class 1 of the Court’s jurisdiction. He submitted that under s 97 the original consent is of no effect, hence, the applicant couldn’t claim to have consent for an approved dual occupancy.

31 The council officer, Ms Idle, stated that with regard to subdivision, the council has consistently applied the CDCP to development applications since the CDCP came into force, and she confirmed that the council has not approved in nearby areas, any Torrens title subdivisions at all. Ms Idle urged the Court to give considerable weight to the subdivision provisions of the CDCP, [Note: Stockland Developments Pty Limited v Manly Council [2004] NSWLEC 472 (3 August 2004)]. She stated that if the Court were to grant approval to the Torren title subdivision of the land, there “…would be a negative change in the character and streetscape of the area and would effect a general change in the planning framework adopted and consistently applied by the council to date.” She was particularly concerned that subdivided land might in the future be further redeveloped and the character might change.

32 Mr Jackson submitted there is no confusion as to what Part 6.2 - subdivision and allotment size of the CCDP states. He submitted that subdivision must be in accordance with Table 6.3, [Note: Exhibit 6, p 49], and must be of an area of at least 450m2 and greater than 14m frontage. He submitted that the note at the end of Part 6.2 that: “This minimum allotment size does not apply to approved dual occupancies (see Table 6.1),” is irrelevant to a consideration of allotment size in the present case. He submitted that as the Class 1 application is de novo the council’s consent of an attached dual occupancy is of no effect. He stressed that the application as described on the development application form is for “demolish single dwelling, subdivide, erect attached dwellings.”

33 Ms Irish submitted that to interpret the CDCP in respect of an approved dual occupancy it is necessary to have regard to the notes contained in the instrument.

34 Ms Irish submitted that despite the application being considered de novo the approved dual occupancy stands behind in the appeal and may be relied on in interpreting the CDCP. Thus, she submitted, the Court on appeal could consider the notes in the CDCP and would uphold the appeal.

35 If I accept the submission of Mr Jackson, I must satisfy myself that the application might be approved notwithstanding the non-compliance with the subdivision requirements under Part 6.2 Table 6.3 of the CDCP. As pointed out by Mr Jackson the proposal to subdivide into two lots the land would result in a significant non-compliance.

36 Mr Jackson submitted that there would be a shortfall of 102m2 for each 348m2 allotment of land to be created. He submitted that the significant shortfall for each lot was compounded as a result of there being proposed two undersized lots giving a 204m2 shortfall. He also submitted that the 7.62m width of the proposed new lots would be non-compliant with 14m requirement of the CDCP. He submitted “…the proposal does not and cannot achieve objective O1 of 6.2 p 49” and this is significant as the cl 1(b) objective of the Residential 2A zone DLEP requires the nature and intended future use of land within the zone to be delineated by means of the CDCP. He submitted that under O1 the proposal to subdivide would not “…reflect and reinforce the predominant subdivision pattern of the area”. As a result, he submitted the application must fail.

37 The evidence of Ms Idle is clear that the predominant subdivision pattern in the area is that created by allotments of around 700m2 and 14m frontage. To allow a subdivision of around half the size of the predominant allotment sizes would be inconsistent with and contrary to objective O1 of Part 6.2 of the CDCP. In this regard I have had regard to the locality plan of the surrounding area attached to Ms Idle’s statement, [Note: Exhibit 1, Attachment 3]. This plan I have annexed to this decision.

38 I accept the evidence of Ms Idle referred to in Mr Jackson’s submissions that the proposed subdivision would not “…reflect and reinforce the predominant subdivision pattern of the area.” Thus the existing allotment should remain un-subdivided.

39 For the above reasons, the appeal is dismissed.

Costs

40 There were brief submissions in regard to costs and the question of costs is reserved.

Orders
41 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.
2. Development application No 486/04 lodged with the respondent council on 4 August 2004 to demolish the single dwelling, subdivide, erect attached dwellings at Lot 9, DP 7156, being No 400 Lyons Road, Russell Lea, is refused consent.
3. Costs are reserved.
4. The exhibits with the exception of Exhibits A, B, 3, 4 and 5, are returned.

S J Watts

Commissioner of the Court

sw