Combs R & Anor v Hornsby Shire Council Summary

Land and Environment Court

of New South Wales

CITATION: Combs R & Anor v Hornsby Shire Council [2007] NSWLEC 307

PARTIES: APPLICANTS:
Robert Combs and Anor
RESPONDENT:
Hornsby Shire Council

FILE NUMBER(S): 11224 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Whether the deferred commencement condition requiring the registration of the plan of subdivision should be imposed.

LEGISLATION CITED: Hornsby Shire Local Environmental Plan 1994, (HSLEP)
Environmental Planning and Assessment Act 1979, ss 79C and 97

DATES OF HEARING: 01/06/2007

EX TEMPORE JUDGMENT DATE: 1 June 2007

LEGAL REPRESENTATIVES: APPLICANT:
Robert Combs, litigant in person
SOLICITORS:
N/A
RESPONDENT:
Mr A Pickup, solicitor
SOLICITORS:
Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

1 June 2007

11224 of 2006 - Robert Combs and Anor v Hornsby Shire Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Hornsby Shire Council (the council) to refuse a development application to erect a new part single-storey and part two-storey dwelling house on proposed Lot 202 at Lot 2, DP 213009, being No 4 Saracen Road, Beecroft. The appeal is against the imposition of a deferred commencement condition (Condition 1) of the development consent that required:

1. The subdivision creating Lot 202 Saracen Road is registered with the NSW Department of Lands and documentary evidence of the registration is forwarded to Council.

2 I have concluded that the Court may endorse the consent orders agreed between the parties.

The land

3 The land is situated on the eastern side of Saracen Road and adjoins Devlin Creek at the rear. The land is also adjacent to the M2 motorway, which is located on the other side of Devlin’s Creek.

4 The land prior to the subdivision approval had an area of 1,530m2 and has an average gradient of 14% to the rear boundary. Proposed Lot 201 has an area of 1,039m2 (551m2 excluding the right of carriageway). This lot contains an existing 2 storey brick and fibro dwelling. Proposed Lot 202 has an area of 534.9m2 (521m2 excluding right of carriageway). Upon this lot is proposed the new dwelling house.

5 The land is located south of Beecroft Village Shops and Railway Station and is approximately 1.5m travelling distance from the station. The locality is characterised by low-density residential development, Beecroft Park, bushland area and the M2 Motorway.

Relevant planning controls

Hornsby Shire Local Environmental Plan 1994, (HSLEP)

6 Under the provisions of the HSLEP the land is zoned Residential A (Low Density) and the proposal is permissible with consent.

7 Under clause 15 of the HSLEP development in the Residential A (Low Density) zone is not to exceed a floor space ratio of 0.4:1 and the proposal complies with this standard.

8 The proposal is also subject to the provisions of Hornsby Dwelling House Development Control Plan, (RDCP).

The proposal and its history

9 Development application No 424/06 was lodged with the respondent council on 3 April 2006 to erect a part single-storey and part two-storey Federation style dwelling house and a freestanding tandem carport on a vacant allotment, which will be created once the earlier subdivision consent, has been registered.

10 The allotment was approved under a separate development application for a two-lot subdivision (DA 1485/01).

11 The proposed dwelling would include a lounge room, living/dining room, kitchen, study, laundry, bathroom, 2 bedrooms, 2 decks and a front veranda at ground floor level and a master bedroom, en suite and balcony within the ceiling space.

12 Much of the dwelling and carport would be supported on piers, straddling, where necessary, the existing emptied swimming pool, which will be retained and used to accommodate 2 x 4,5001t rainwater storage tanks. The rear of the property is subject to a 10m wide riparian zone. However, a small portion of the 10m riparian zone would be impacted upon by the proposed dwelling.

13 On 7 May 2003 the Court granted consent to Development Application No 1485/01 for the subdivision of one allotment into two at No 4 Saracen Road, Beecroft. That subdivision consent granted approval to the creation of an additional allotment known as proposed Lot 202. That subdivision has not yet been registered so that proposed Lot 202 has not been created.

14 The present development application, Development Application No 424/06 that seeks approval to erect a new dwelling house on proposed Lot 202 was granted deferred commencement consent on 11 January 2007.

Notification

15 The application was notified to nearby owners and occupants in accordance with Council's Notification and Exhibition Development Control Plans and the council received one (1) submission.

The council’s decision

16 The application was determined under delegated authority on 10 May 2006 by way of refusal on the following reasons:

1. The proposal does not comply with the prescriptive measures and objectives of the height element of the Dwelling House DCP. The proposed two-storey dwelling does not comply with the prescriptive measures, which state that dwelling houses on battle-axe allotments should not exceed single storey in height. The proposed floor level is 1 m higher than required in Subdivision Consent No 1485/01 resulting excessive height and a design that is not sympathetic to the topography of the site. The proposal is not consistent with development in the local area and will have a detrimental impact on the privacy of adjacent residential development.

5. Compliance with Subdivision Consent No 1485/01, Condition No 36, which states: The swimming pool shall be removed. The pool shall be filled in with clean fill and compacted to not less than 97 per cent as determined by AS 1289.5.7.1 or AS 1298.5.4.1 modified compactive fill.

17 On 23 May 2006, the applicant made application under s82A of the Environmental Planning & Assessment Act 1979 for a re-determination of the council’s decision to refuse the application. This s 82A Review Application was determined under delegated authority by the granting of deferred commencement consent subject to conditions on 11 January 2007.

The hearing

18 The appeal was filed on 14 December 2006 against the deferred commencement condition.

19 At the hearing the Court received written evidence on behalf of the respondent council from Mr Mahony of the council in Exhibit 3.

20 On behalf of the applicant Ms Sneyd in Exhibit B provided written evidence.

21 Mr N McCarry, Senior Town Planner, Hornsby Shire Council, prepared the statement of basic facts dated 12 March 2007.

The issues

22 On 12 April 2007 the council filed an amended statement of issues.

1. Whether the imposition of the deferred commencement consent Condition 1 of development consent No DA 424/06 granted by Hornsby Shire Council on 11 January is necessary under Section 80A of the

Environmental Planning and Assessment Act 1979 as amended.

Particulars

1. The subdivision creating Lot 202 Saracen Road is registered with the New South Wales Department of Lands and documentary evidence of the registration is forwarded to Council.

(b) Condition 22 of development consent No DA 424/06 requires the construction of

‘A rigid pavement driveway servicing the dwelling house must be constructed prior to the issue of an occupation certificate’.

(c) The compliance with condition 22 prior to the issue of an occupation certificate is sufficient to satisfy the intent and requirement of the deferred commencement Condition 1.

23 The salient issue is whether the deferred commencement condition requiring the registration of the plan of subdivision should be imposed.

The evidence and findings

Deferred commencement condition

24 The parties have agreed to amend the deferred commencement condition by making it a general condition of consent in the following terms:

1. The subdivision creating Lot 202, Saracen Road, is to be registered with the NSW Department of Lands and documentary evidence of the registration is forwarded to Council before the issue of an occupation certificate for the dwelling on proposed Lot 202.

25 If the plan of subdivision were registered before occupation of the dwelling, as required by the amended condition the council is satisfied that the same result would flow as with the original deferred commencement condition.

26 The applicant understands that if registration did not occur before occupation there would be for a time two occupied dwellings on the land and the use would be characterised as a type of ‘dual occupancy’ for which consent has not been granted.

27 With the proposed amendments to Condition 1, the council is willing to vary the condition to require the registration of the subdivision of Lot 202 before occupation of the dwelling on that lot.

28 With those amendments to Condition 1, the Court grants approval by consent of the parties.

29 The Court notes that the council notified the sole objector of the hearing and the amendments to Condition 1 and that the objector did not wish to appear. The objector’s concern for the structural stability for the stone retaining wall on the common boundary is noted and Mr Pickup for the council explained that this is a matter that is to be dealt with in the construction certificate.

30 For the above reasons, the appeal is upheld by consent.

Conditions

31 The conditions are those in Exhibit 2 pp 90 to 99 that were imposed on the original consent with Condition 1 amended.

Consent orders
32 The consent orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 424/06 lodged with the respondent council on 3 April 2006 to erect a part single-storey and part two-storey Federation style dwelling house and a freestanding tandem carport on proposed Lot 202 at Lot 2, DP 213009, being No 4 Saracen Road, Beecroft, is approved subject to Conditions 1 to 50 in Annexure A.

3. The exhibits except for Exhibits A, C, 2 and 4 are returned.

S J Watts

Commissioner of the Court

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 are 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

Details

AGLC: Combs R v Hornsby Shire Council [2007] NSWLEC 307
Case: [2007] NSWLEC 307
Decision Date: 1 June 2007

CaseChat Overview and Summary

Robert Combs and another party appealed against the decision of the Hornsby Shire Council to refuse their development application to construct a new dwelling on Lot 202 at Saracen Road, Beecroft. The council's refusal was based on the premise that the proposed two-storey dwelling exceeded the height restrictions stipulated in the Dwelling House Development Control Plan and did not align with the local area's development pattern. The applicants appealed against the refusal and the imposition of a specific condition requiring the registration of the subdivision plan before the issuance of an occupation certificate for the new dwelling.

The primary legal issue before the court was whether the deferred commencement condition mandating the registration of the subdivision plan should be enforced. This condition was intended to ensure that the subdivision creating Lot 202 was officially registered with the NSW Department of Lands and that documentary evidence of this registration was submitted to the council. The court also considered the implications of the condition on the structural stability of a stone retaining wall on the common boundary, which was a concern raised by an objector.

The court deliberated on the necessity of the deferred commencement condition, considering the parties' agreement to modify the condition to a general condition of consent. The amended condition required the subdivision to be registered before the issue of an occupation certificate for the dwelling on Lot 202. The court found that if the subdivision plan was registered before the occupation of the dwelling, the council would be satisfied that the same outcome would be achieved as with the original deferred commencement condition. The council was willing to alter the condition to align with the proposed amendments. Consequently, the court granted approval by consent of the parties. The court noted that the council had notified the sole objector of the hearing and the amendments to Condition 1, and the objector did not wish to appear. The court upheld the appeal by consent and granted development consent subject to specific conditions.

The final orders of the court included the approval of the development application subject to the imposed conditions, the return of exhibits except for certain specified documents, and the availability of the court's orders and conditions for inspection and purchase from the court's registry. The court's decision resulted in the grant of development consent subject to the detailed conditions, which were not reproduced in the judgment but were available for inspection at the council and for purchase from the court's registry.

Orders