Codling v Willoughby City Council - [2005] NSWLEC 689

Land and Environment Court

of New South Wales

CITATION:
Codling v Willoughby City Council [2005] NSWLEC 689

PARTIES:
APPLICANT
J W Codling
RESPONDENT
Willoughby City Council

FILE NUMBER(S):
11003 of 2005

CORAM:
Moore C

KEY ISSUES:
Development Application - Subdivision :-
Consistency with zone objectives
.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Willoughby Local Environmental Plan 1995
Development Control Plan No 15 Multi-unit Residential Developments in Residential 2(b), 2(c) and 2(d) zones
Development Control Plan No 16 Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones
.

CASES CITED:
Gillespies v Warringah Council [2002] 124 LGERA 147;
Zhang v Canterbury City Council (2001) 115 LGERA 373;
.

DATES OF HEARING: 15 November 2005

DATE OF JUDGMENT:

11/30/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr D Wilson, barrister
RESPONDENT
Ms H Irish, barrister
INSTRUCTED BY
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

30 November 2005

05/11003 J W Codling v Willoughby City Council

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but will be available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
JUDGMENT

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act, 1979 against the refusal by Willoughby City Council (the council) of Development Application 2005/576 for the subdivision into two allotments of an existing single allotment at 18 Penshurst Street, Willoughby (the site) and to carry out alterations and additions to the existing semi-detached dwelling on the site. The application was submitted to the council on 19 July 2005 and determined by refusal on 26 September 2005.

2 I inspected the site with the legal representatives of the parties, their planning advisors and local resident objectors. I also walked this section of Penshurst Street to observe the streetscape context of the site.

3 During the course of the view, I heard evidence from the local objectors. Their written submissions were contained in the council’s bundle of documents tendered in the proceedings. The concerns of the objectors primarily related to two matters. The first was what they regarded as the beginning of undesirable change in the nature of settlement in the vicinity of the site and the second was traffic and parking.

4 With respect to the change for which they perceived this application was a precedent, they did not wish change to take place from the established pattern of single residences on the existing grid of single allotments in this portion of Penshurst Street.

5 However, these concerns are contrary to the specifically identified future character for the 2(c) zone in which the site is located. This future character is identified in the Willoughby Local Environmental Plan 1995 (the LEP), which specifically sets out the relevant detailed objective for the zone.

6 The LEP sets out, in cl 14F, two specific zone objectives. The first (and relevant) objective is:

(a) To accommodate a variety of medium density housing, including such types as walk-up flats and town houses, which are compatible with the scale and character of the surrounding residential area,

7 It is clear, from this objective, that the council has designated this section of Penshurst Street as being within an area which will undergo change, over time, from a single residence on a single allotment settlement pattern to one of a consolidated medium density housing nature. For this reason, the residents’ desire to preserve the present development pattern has already been overruled by the council’s policy decision on the appropriate zoning for this section of Penshurst Street.

8 It is self evident that this change will not occur immediately or uniformly but, as can be seen from the nature of the existing development toward the northern end on the western side of this section of Penshurst Street and to the rear of the site, it is a change which has already commenced in the vicinity.

9 Similarly, the zoning decision previously taken by the council will also inevitably lead to traffic and (possibly) parking consequences which are opposed by the objectors. As with the issue of settlement pattern, however, the residents’ desire to prevent further traffic intensity on this section of Penshurst Street has already been forestalled by the council’s policy decision on the appropriate zoning for this section of Penshurst Street.

10 Whilst it is clear that, if approved, the present proposal will lead to a modest increase in the number of cars in this section of Penshurst Street and, possibly, a modest increase in the competition for on-street parking, these matters, it is agreed by the planners, are not issues in these proceedings. I agree with this conclusion, drawn by necessary inference from the specific zone objective cited above and from the range of issues, which they have, in fact, dealt with their statements of evidence.

11 Although it is also true that there will be a modest increase in traffic if the proposal is approved, such an increase in traffic is, itself, necessarily consistent with the desired future character arising from the zoning and the first of the specific zone objectives.

12 Indeed, in the fullness of time, as those objectives identified by the council become increasingly fulfilled, there may well be a significant increase in traffic in this section of Penshurst Street if future medium density residential development takes place. However, that will be the inevitable consequence of the planning controls, adopted by the council, which define the planning matrix within which I must determine the present appeal.

13 The principal issue which arises to be determined in these proceedings is whether or not the proposal should be consented to in light of the specific objectives for the zone and the requirement in the LEP that consent shall not be given to any development unless the development is consistent with one such specific objective.

14 A subsidiary issue was pressed by the council relating to the acceptability or otherwise of the proposed parking space for the front dwelling to be located in its front setback. This issue was raised in two contexts. The first is the position put by the council that, whilst parking in the front setback is acceptable, the creation of a parking space parallel to the street rather than right angles to it is an unacceptable contrast to other elements in the streetscape. It was also put that the creation of such a parking space for the front dwelling is, if permitted, one which would necessarily impose unacceptable restrictions on the amount of soft landscaped area and the appropriateness of the landscaping which could be achieved in the front of the existing dwelling.

15 As a consequence of the conclusion which I have reached with respect to the issue of subdivision, it is not necessary to address these other matters, whether determinative of or merely contributory, as part of the reasons which might have supported refusal of the proposal had I made adverse findings with respect to them.

16 A further minor issue was raised concerning the adequacy of information provided by the applicant relating to the suitability of the proposed vehicle turntable to be installed in front of the garage of the new rear dwelling. The purpose of this turntable is to permit occupants of the rear dwelling to turn their vehicles so that it may exit from the site in a forward facing direction. The turntable is not proposed to be undercover and no technical information with respect to its design or suitability has been provided to the council.

17 During the course of the inspection of the site, I indicated that, if the proposal were otherwise appropriate, I would permit the applicant a further period of time within which to provide information about the proposed turntable for the council to assess.

18 I also indicated that, if this were necessary, any additional costs imposed on the council as a consequence would be required to be met by the applicant. Given the outcome of my consideration of the subdivision element, however, this matter does not need to be canvassed further.

19 At the commencement of the Court hearing, I asked Mr Wilson, barrister for the applicant, if the applicant would wish to receive a consent for the alterations and additions proposed to the existing dwelling even if I were to conclude the subdivision application should not be approved. He received instructions that the applicant would wish to receive such a limited consent.

20 As a consequence, I indicated that, whatever the outcome of the proposal for subdivision, the result of the appeal would at least be a consent for the alterations and additions to the existing semi-detached dwelling on the site.

21 A consequence of such a limited result, as indicated by Mr M Benson, a development planner employed by the council, is that no landscape plan would be required if the only consent flowing from the proceedings were to be confined to one for these alterations and additions.

22 The principal relevant planning controls are contained in the LEP. Subdivision is permitted with the consent of the council (cl 11 of the LEP). Hence, the proposal is permissible with consent.

23 The relevant provision setting out the responsibility of the consent authority concerning the zone objectives is set out in cl 13(3) which reads:

13 Zone objectives and development control

(1) ……………………
(2) ……………………

(3) Except as otherwise provided by this plan, the Council shall not consent to development on land to which this plan applies unless the Council is of the opinion that the development is consistent with one or more of the aims of this plan and at least one specific objective of the zone within which the development is proposed to be carried out.

24 The LEP also contains two general objectives for the three medium to high density residential zones in the council's area (including that within which the site is located). These are:

14D Medium and high density residential areas—Zones 2 (b), 2 (c), 2 (d)
General Objectives
(a) To allow for increased residential density in accessible locations, while minimising the potential for adverse impacts of such increased density on the efficiency and safety of the road network, and
(b) To encourage innovative design in providing a comfortable living environment which also has regard to solar access, privacy, noise, views, vehicular access, parking and landscaping.

25 It is clear, however, from cl 13(3), that no specific threshold hurdle is invoked by these general objectives. The present site is one which, in the words of Mr Benson, is at a location characterised (relevantly to the first of the general objectives) as being:

proximate to public transport along Mowbray Road, Penshurst Street (north of Mowbray Road) and Willoughby Road; and
proximate to local shops and services that can meet the needs of the intended additional population.

26 Thus, in the council’s opinion, the site clearly satisfies the first of these objectives as a site for increased residential density – in abstract terms. I am satisfied that such an increase in density is also something which would be effected by the application – albeit by only a very minor degree.

27 Mr Wilson pressed me to find that the proposal also, in itself, proposed medium density development. He put this on the basis that, because there would be two dwellings where there had originally been only one on the un-subdivided allotment, this necessarily implied an increase in density; and such increase in density, albeit modestly, constituted medium density housing.

28 I do not consider that I should so conclude. I decline to accept this submission for two reasons.

29 First, although Mr Benson agreed that medium density housing, in the context of this zone, could include such housing such as detached townhouses or villas on separate titles (as provided in the LEP definition discussed later), It is it is clear from the maximum permissible floor space ratio (FSR) for residential flat buildings in the zone in which the site is located (a maximum FSR of 0.9:1), the present proposal does not even remotely approach the maximum permitted.

30 Whilst it is true that the maximum permitted FSR is a limitation rather than a target, I am satisfied that the present proposal is so far removed from that maximum FSR that it could not possibly be considered medium density housing.

31 In addition, it is also reasonable to assume from the definition and from basic principles that medium density housing, in this context, involves construction of a number of similar units of housing, whether on an existing single site or some aggregation of existing sites, in a pattern as part of a coordinated development. This is also certainly not the case for the present proposal.

32 As to the second general objective, the proposed development of the new dwelling at the rear is not argued by the council to infringe the second general objective. Whilst the proposal might not be at the cutting edge of urban design, the modesty of the design reflects the modesty of the size of its proposed site. I am satisfied that this general objective is also met by the proposal.

33 These general objectives do not, therefore, require any further detailed consideration in this appeal.

34 On the other hand, cl 13(3) does raise, as specific threshold hurdles, the provisions of the specific zone objectives. These are:

14F Zone 2 (c)—Residential “C” Zone
(1) Specific Objectives

(a) To accommodate a variety of medium density housing, including such types as walk-up flats and town houses, which are compatible with the scale and character of the surrounding residential area, and
(b) To enable the provision of appropriate communal recreation facilities for use by residents.

35 The first of these is the crucial provision in the determination of these proceedings. The second is not relevant.

36 Mr L Doyle, a town planning consultant, provided a statement of evidence on behalf of the applicant.

37 Mr Benson and Mr Doyle also gave concurrent oral evidence on this issue and on the streetscape issue.

38 When considering the compatibility of the proposal with the first specific objective of the zone, it is appropriate to set out, in full, the evidence of the two planners where it is relevant to this point. It is also necessary make a comment on the accuracy of the evidence of each witness prior to making an analysis of it and reaching any conclusion on this issue.

39 Mr Benson’s statement of evidence read, on this point, as follows:

To accommodate a variety of medium density housing, including such types as walkup flats and town houses, which are compatible with the scale and

character

of the surrounding residential area; and"

i) its proximity to public transport along Mowbray Road, Penshurst Street (north of Mowbray Road) and Willoughby Road; and

40 Mr Benson conceded, in cross-examination by Mr Wilson, that the limitation implied by the words above that the site was part of an area which had been identified by the council as appropriate for residential flat building development was an unwarranted reading down of what was encouraged by the zone objective.

41 However, in the LEP, the definition of residential flat building reads:

residential flat building

42 It is clear from this definition that other forms of denser development are permitted – not merely three storey apartment buildings. I therefore accept, not withstanding his concession, that Mr Benson’s original statement is correct.

43 Mr Doyle’s statement of evidence dealt with this issue, in broader terms, in several places:

The Statement of Issues prepared by the Respondent indicates that Council not only permits residential flat buildings of 3 storeys in height with a floor space ratio of 0.9:1 within this zone but Council has a preference to this type of construction within this zone. This being the case, future developments within the area will require sites for this type of development that will require sites that greatly exceed the minimum lot size of 1100 sq. metres within the 2C Zone. This is due to the restrictions on the building footprint (being a maximum of 30% of the site) as expressed within Willoughby Development Control Plan No. 15. I believe that future developments within this zone will require lots sizes in the order of 2000-2500 sq. metres (as a minimum) to achieve the required yield whilst satisfying Council's controls for maximum site coverage, landscaping and open space. I do not believe that the proposal as submitted will prejudice this objective as the existing site of 619.7 sq. metres is incapable of any medium density development unless incorporated into a site of at least 1100 sq. metres with a frontage of 27 metres to Penshurst Street - according to WLEP 1995 [emphasis added] .

The creation of an additional allotment and the potential construction of an additional dwelling will involve an input of capital into the site and it can be reasonably expected that property owners will expect a return on this capital investment. What needs to be taken into account however, is the amortization of the value of the existing site by proposing an interim use of the entire site, by the provision of an additional allotment and the subsequent construction of a single dwelling on the created lot.

This subdivision and potential construction of a new dwelling will, to some extent, increase the value of the land at the rear to be excised by the proposal. The proposal needs to be put into perspective however, as the fact that dwelling houses are a permissible use within the zone is likely to lead to substantial capital expenditure on existing dwellings in the locality through either the demolition of existing dwellings or substantial alterations and additions to those dwellings. The permissibility of dwellings within this zone allowing the alterations and additions or demolition and reconstruction of dwellings will result in substantial capital injections into sites within the residential 2C zone.

This proposal, due to its modest size and subsequent modest dwelling to be constructed on the site will limit the amount of capital injection into the site and will subsequently limit the amount of return required by property owners.

will not unreasonably impede

44 Mr Doyle’s ultimate conclusions were set out as follows:

The refusal of the proposed subdivision of No. 18 Penshurst Street, Willoughby to create 2 allotments and renovate the existing semi-detached dwelling on the site was refused by Council for a variety of reasons, many of which relate to the streetscape and provision of off-street carparking for vehicles.

The issues of off-street carparking, streetscape, private open space and landscaped area have been resolved.

The issue of the approval of this subdivision becoming a mechanism that will hinder the Aims and Objectives of the Residential 2(c) zone is in my view unable to be substantiated in the longer term.

For the reasons described within my Statement of Evidence I believe that due to the substantial site areas that will be required, (in the order of 2000-2500 sq. metres), this proposal will not be seen as sterilising the attainment of the objectives of the zone.

The limited amount of capital injection into the site (under this proposal) by virtue of the construction of any dwelling and associated infrastructure such as stormwater, sewer and vehicular access thereto will not be of such a magnitude as to prevent it's [sic] acquisition in the future by property developers that are seeking to assemble sites to achieve the objective of the Residential 2(c) zone to construct residential flat buildings, 3 storeys in height with a floor space ratio of 0.9:1.

does not unreasonably hinder the attainment of the long term planning objectives for the zone

45 The LEP requires, in cl 13(3), that the development is consistent with the specific zone objective in cl 14F(1)(a).

46 In Gillespies v Warringah Council [2002] 124 LGERA 147 at 165, Bignold J considered how one should regard the expression consistent in the context relevant to this appeal. He said:

70. With the benefit of the survey of the decided cases on the meaning that has been given to the word “ consistent ” in clauses in planning instruments that require an opinion by the consent authority that a proposed development be “ consistent with the zone objectives” , I would for myself, conclude that the word ‘ consistent ” appearing in cl 12(3)(b) of the LEP, assumes its ordinary and natural meaning. That meaning in my respectful opinion is not confined to the notion of the proposed development “ not being antipathetic ” to the desired future character of the Locality.

antipathetic

having a natural antipathy, contrariety or constitutional aversion

inconsistent

inconsistency

antipathy

Coffs Harbour Environment Centre Inc

unless the Council was satisfied that the carrying out of the development is generally consistent with one or more of the stated objectives of the zone

the provisions do not permit an antipathetic development…

Public Recreation

could not possibly be regarded as being compatible with public recreational use of the land

antipathetic

generally consistent

73. Accordingly, it is clear in my opinion that whereas something that is antipathetic to a stated object is obviously inconsistent with that object, antipathy is not a true synonym of inconsistency and the meaning of inconsistency is not to be confined to the meaning of antipathy. Inconsistency can arise without any antipathy.

compatibility

consistency

inconsistency

Coffs Harbour

Environment Centre

too expansive

consistent

compatible

mutually tolerant

compatible

enerally

consistent

compatible

consistent

desired future character

compliance with development standards, however, does not guarantee that the development is consistent with….the desired future character of the locality

describes the desired characters of the localities that make up Warringah and relate the controls on development

to the achievement of the desired characters of those places

consistent

not antipathetic

would not best meet the purposes

objects

EP&A Act

(3) Where a provision of an environmental planning instrument is genuinely capable of different interpretations, that interpretation which best meets the aims, objectives, policies and strategies stated in that instrument shall be preferred.

consistent

not antipathetic

1. agreeing or accordant; compatible; not self-opposed or self-contradictory; 2. consistently adhering to the same principles, course etc

47 On the other hand, Mr Doyle uses the expressions not unreasonably impede and not unreasonably hinder to describe the interaction of the proposal with the specific zone objective in cl 14F(1)(a). He confirmed the appropriateness of this language in his oral evidence. He indicated that the proposal might delay the possibility of the site being incorporated in an aggregation for future development – but only by five to ten years, in his opinion.

48 It is clear to me that the test of consistency which follows from the conclusion of Bignold J in his para 77 above is appropriate in this case. It also follows that the written evidence of Mr Doyle, although couched in the double-negative in each instance, constitutes an admission that, to some extent at least, the proposal impedes or hinders attainment of the relevant specific zone objective.

49 He also said:

The limited amount of capital injection into the site (under this proposal) by virtue of the construction of any dwelling and associated infrastructure such as stormwater, sewer and vehicular access thereto will not be of such a magnitude as to prevent it's [sic] acquisition in the future by property developers that are seeking to assemble sites to achieve the objective of the Residential 2(c) zone to construct residential flat buildings, 3 storeys in height with a floor space ratio of 0.9:1.

50 In his oral evidence, he said that the possibility of aggregation could be put off for five to ten years (as a maximum). This constitutes, in my view, an acknowledgement of the minimum potential degree of hindrance that this proposal would make to attainment of the zone objective for the site. Even if even this could be characterised as minor (which I do not think it is – but I do not need to determine this), it certainly cannot be described as consistent with the relevant specific zone objective as that expression should be regarded in light of Gillespies.

51 As a consequence, on this basis alone, I am satisfied that it is reasonable to conclude that the appeal should be dismissed.

52 If I be wrong in reaching the conclusion the appeal should be dismissed on this basis, I turn to consider whether the proposal would, otherwise, be inconsistent with the relevant specific zone objective on other grounds.

53 I have concluded that it would be so. I have reached this conclusion for several reasons.

54 The first, dealt with earlier, is that the proposal itself cannot be characterised as medium density development.

55 Second, a significant element in Mr Doyle’s evidence does not accurately reflect the position in the planning instruments.

56 As noted above, Mr Doyle’s opinions include, inter alia, that he did not believe:

………….. the proposal as submitted will prejudice this objective as the existing site of 619.7 sq. metres is incapable of any medium density development unless incorporated into a site of at least 1100 sq. metres with a frontage of 27 metres to Penshurst Street - according to WLEP 1995.

57 The provision in the LEP which Mr Doyle appears to have considered being applicable is cl 24. This reads, relevantly:

22 Minimum allotment size

(1) Except as otherwise indicated in clause 25 [an exception which is not relevant] , a person shall not erect a residential flat building on any allotment having frontage to a State or Regional road as listed in Schedule 1A where the allotment:

(a) ………….., or

(b) is within Zone 2 (c) or 2 (d) and has an area of less than 1,100 square metres [and] a width of less than 27 metres at the front alignment of the building.

58 State or Regional road is defined relevantly in Schedule 1A as:

Schedule 1A State or Regional roads

State roads

59 The site is on a portion of Penshurst Street not within the defined portion in Schedule 1A. Therefore, the minimum allotment size and minimum frontage requirements of cl 22 do not, in fact, apply.

60 As a consequence, this element of Mr Doyle’s evidence cannot be relied upon with respect to one significant element of his conclusions.

61 Third, I should assess if this proposal is consistent with the envisaged future development pattern.

62 The maximum FSR is set out in cl 23 of the LEP:

23 Floor space ratios

(1) The Council shall not consent to the erection or use of a residential flat building if the floor space ratio exceeds:

(a) ……………. or

(b) 0.9:1 within Zone 2 (c) [subject to an irrelevant exception]

63 As earlier noted, the maximum permitted FSR is a limitation rather than a target. According to the report to the council meeting of 19 July 2005, the area of the two proposed allotments (excluding the access handle to the proposed rear allotment) is 492.6 sq m. The present dwelling (as altered) will be 109.5 sq m and the concept dwelling for the rear allotment is 82.8 sq m – a development total of 192.3 sq m.

64 Thus, the effective FSR for this proposal (at the date of the council report) is ~ .39:1. Although there may have been minor modification since the date of the report, the broad comparison remains valid. Mere statement of this in detail confirms the earlier conclusion that, on this ground, the proposal cannot be consistent with the specific zone objective as the FSR is so far below the maximum envisaged by the desired future character of the zone as to be antipathetic to that objective.

65 Development Control Plan No 15 Multi-unit Residential Developments in Residential 2(b), 2(c) and 2(d) zones (DCP 15) sets a number of relevant provisions for the desired framework of development in the three more intense development zones.

66 The application of DCP 15 is set out as:

This document is known as the Development Control Plan for Multi-unit Residential Developments in Residential 2(b), 2(c) and 2(d) zones .

This Development Control Plan (DCP) outlines Council’s requirements for the development of multi-unit residential developments in the Willoughby City area and applies to all land in Residential 2(b), 2(c) and 2(d) zones under the Willoughby Local Environmental Plan 1995.

67 Its relevant purpose is:

PURPOSE OF THE PLAN

1. To encourage the development of a variety of multi-unit housing types which are compatible with the urban scale and character of existing neighbourhoods and which take account of the environmental constraints .

68 Part 3 of DCP 15 sets out the Controls and Performance Criteria for Multi-Unit Residential Zones. In Part 3.01, Allotment size, DCP 15 specifically notes that:

There are no minimum allotment size requirements for locations other than on a state or regional road unless specifically identified in an LEP.

69 As discussed earlier, the LEP makes no provision requiring any minimum allotment size for multi-unit development in the area where the site is located. Thus, if it could be designed in compliance with the other applicable numeric controls or non-compliance adequately explained (a hypothetical exercise not appropriate for me to consider), the site is not excluded for multi-unit development on its own.

70 The relevant objective of DCP 15, in amplification of the zone’s objectives in the LEP, is to encourage the development of a variety of multi-unit housing types.

71 As to the emphasis I should give to the DCP, Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at para 75 on pp 386 and 387, three propositions emerge. First, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

72 On the other hand, if a proposal does not meet the DCP’s requirements, the Court may still grant consent, in appropriate cases, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Act.

73 In this instance, I am satisfied, based on all the matters canvassed above, the application is contrary to DCP 15 as well as the zone objectives. There is no countervailing environmental or planning benefit flowing from this proposal which would cause me to set aside the LEP or the DCP.

74 A further development control plan, Development Control Plan No 16 Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones (DCP 16) was cited but is not relevant in light of my other findings.

75 Given these conclusions, I also do not need to consider the non-compliance with the desired frontage for the front allotment set by the council’s subdivision code.

76 As a consequence of the various findings above, the outcome must be that the subdivision element of this appeal is refused.

77 However, because of the position taken by the applicant with respect to a consent for the alterations and additions to the existing semi-detached dwelling, the formal orders of the Court will be to the effect that:

The appeal is upheld to a limited extent;
Development Application 2005/576 for the subdivision into two allotments of an existing lot and to carry out alterations and additions to the existing semi-detached dwelling at 18 Penshurst Street, Willoughby will be determined by the granting of development consent solely to the extent of permitting the carrying of out of the proposed alterations and additions to the existing semi-detached dwelling (but excluding the proposed car parking space in the front of the existing dwelling) and subject to conditions to be settled between the parties;
Costs will be reserved; and
The exhibits will be returned

78 Formalising these orders will require the provision of revised plans and conditions of consent.

Directions

79 I therefore direct:

The applicant is to file and serve, by the close of business on 9 December 2005, revised plans dealing only with the renovations and alterations to the existing dwelling;

The respondent is to file and serve, by the close of business on 9 December 2005, revised conditions of consent confined to the renovations and alterations to the existing dwelling;

Liberty to relist at 9 a.m. before Moore C, on one days notice up to 8 December 2005, if any matters in the conditions of consent or plans remain in contention;

The matter is set down callover before the Registrar on 14 December 2005; and

Orders will be issued in chambers and the callover vacated if revised plans are settled between the parties and filed; and if the conditions of consent are settled between the parties and filed, electronically, in accordance with Practice Direction 2 of 2005; and the filing of the revised plans and conditions are both effected prior to the close of business on 12 December 2005.

80 I will also ask the Registrar to set the matter down for mention before me, in the following week, in lieu of further deferral to callover, if these matters are not resolved by 12 December.

81 If this matter returns to me as a consequence of this process, I will not merely be giving further directions but, unless persuaded to the contrary, I will be seeking the consent of the Chief Judge to make appropriate costs orders if I consider there has been unreasonable delay by a party in finalisation of the matter.

Tim Moore

Commissioner of the Court

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Citations

Codling v Willoughby City Council [2005] NSWLEC 689

Cases Citing This Decision

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Statutory Material Cited

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Zhang v Canterbury City Council [2001] NSWCA 167

CITATION:	Codling v Willoughby City Council [2005] NSWLEC 689
PARTIES:	APPLICANT J W Codling RESPONDENT Willoughby City Council
FILE NUMBER(S):	11003 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application - Subdivision :- Consistency with zone objectives .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Willoughby Local Environmental Plan 1995 Development Control Plan No 15 Multi-unit Residential Developments in Residential 2(b), 2(c) and 2(d) zones Development Control Plan No 16 Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones .
CASES CITED:	Gillespies v Warringah Council [2002] 124 LGERA 147; Zhang v Canterbury City Council (2001) 115 LGERA 373; .
DATES OF HEARING:	15 November 2005
DATE OF JUDGMENT:	11/30/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr D Wilson, barrister RESPONDENT Ms H Irish, barrister INSTRUCTED BY Mallesons Stephen Jaques