Cracknell Lonergan v Sydney City Council

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Abdallah v Canterbury City Council [2005] NSWLEC 27

PARTIES:
APPLICANT
S Abdallah

RESPONDENT
Canterbury City Council

CASE NUMBER: 10655 of 2004

CATCH WORDS: Development Application; Dual Occupancy; Subdivision

LEGISLATION CITED:

CORAM: Moore C

DATES OF HEARING: 30 August 2004 and 4 February 2005

EX TEMPORE DATE: 04/02/2005

LEGAL REPRESENTATIVES

APPLICANT
Mr R Creighton, agent

RESPONDENT
Mr J Reilly, solicitor
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
MOORE C
4 February 2005
04/10655 ABDALLAH v CANTERBURY CITY COUNCIL
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
JUDGMENT

COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Canterbury City Council (the council) of an application to subdivide into two separate allotments property known as Lot B DP 449158 otherwise known as 28 Moreton Street Lakemba (the site).
Each of the allotments would contain a separate dwelling. One of them, Lot 1, would have a frontage to Moreton Street and Lot 2 would have a frontage to the cul-de-sac end of Station Road. Lot 1 would have an area of 275.6 square metres and Lot 2 an area of 272.6 square metres.
As originally proposed, Lot 1 fronting Moreton Street would not have had a separate vehicle access and would have relied for vehicle parking on space in the frontage area of Lot 2. As a consequence of comments that were made by me (with the agreement of the parties) to provide them with assistance in further resolution of the matter during the site inspection, the applicant subsequently agreed to provide separate hard stand parking space in the Moreton Street frontage of Lot 1.
If I am satisfied that consent should be granted, it is proposed that the design of that hard stand area be dealt with by way of a deferred commencement condition.
Moreton Street is a moderately heavily trafficked street and, although there is no formal evidence before me concerning its status in the local road hierarchy, it would warrant description as a significant feeder street carrying significant north-south traffic including traffic over the railway line some distance to the south.
Also of importance, in dealing with the context of the planning issues associated with the application, is to describe the nature of the relationship between Lot 2 and the cul-de-sac end of Station Road.
The totality of the frontage that is the proposed boundary of Lot 2, which includes a frontage to Station Road, is 10.36 m. However, the totality of that length does not comprise a frontage to Station Road but there is a sufficient frontage directly to Station Road to enable the construction of gates and the provision of a vehicle access. One of the criticisms made by the council’s planning witness, to which I will return later, is that the width of that access does not permit the inclusion of a separate pedestrian access.
Immediately adjacent to the site and to its east, on the southern side of Station Road, is a single detached dwelling which also has vehicle access to Station Road.
It was obvious from the view (and on this point I accept Mr Boers’ evidence as confirming that which was seen on the view) that there is no apparent conflict between the driveways and the pedestrian access of that dwelling and that which exists on Lot 2.
On the northern side of Station Road is a large municipal park containing children’s play equipment which serves the surrounding residential development. There is, however, no suggestion from any of the witnesses that the nature or frequency of the vehicle access from Lot 2 into Station Street would cause any hazard or risk to children using that playground.
There is erected on Lot 2 a brick cottage with a tiled roof - it is common ground between the parties that this is of less than 90 sq m in floor space and contains no more than two bedrooms. It was constructed pursuant to a consent granted on 8 May 1997 in response to Development Application 8620 of 1996. A condition of this consent, condition 16, provides that the property is not to be subdivided.
That development application was assessed against the terms of the then applicable Development Control Plan 14 being the development control plan of that number dated as coming into force on 22 December 1992 (the 1992 DCP). The relevant provisions of the 1992 DCP to site area and such dwellings, for example, provided, amongst other things, that there had to be a minimum street frontage of 6 m and a site available to each dwelling of 230 sq m. It is not suggested, in the present case, that the street frontage of Lot 2 would satisfy that standard being the standard set out in cl 3.2.2 of the 1992 DCP nor would the standards for a subdivisible detached dual occupancy development, set out in 3.1.2, of 600 sq m have been satisfied.
However, the application that is now before the Court comes as a deemed refusal for an application which needs to be assessed against the provisions of a later version of Development Control Plan 14 which came into effect from 25 June 2004 (the 2004 DCP).
I understand it to be conceded by the council that, as the application had not been determined by the council as at that date nor had it been determined by the Court, the newer of the development control plans, the 2004 DCP) is that which applies relevantly to this application.
There are number of critical matters in the 2004 DCP which need to be considered, the two of which are pressed by Mr Reilly, solicitor on behalf of the council, being that a combination of the definition of granny or garden flat in the definitions of the 2004 DCP and the design requirements for subdivision, prohibit the subdivision in this instance.
Mr Reilly initially submitted to me that I ought not grant the appeal on the basis that the decision of Bignold J in Progress and Securities Pty Limited v North Sydney Municipal Council (1998) 66 LGRA 236 stands for the proposition that where an appeal against a new application amounts, in effect, to an appeal out of time against a condition originally imposed in an earlier consent such fresh application should not be permitted to act as a vehicle for such an appeal out of time. If that were the position in this case, I would be obliged conformably with his Honour’s decision to dismiss the appeal, however I am satisfied that circumstances of that case differ from those which face me in this matter.
The position is altered, at the time I am required to determine it, by the fact that the 2004 version of the development control plan, which now applies, differs in the relevant and determinative matters from the 1992 development control plan which applied at the date of the original determination. Therefore, I am satisfied that there is not an appeal by way of fresh application seeking merely to avoid the fact that an appeal against the original conditions was out of time. The planning regime to a sufficient extent has altered so as to make that prohibition inapplicable.
During the course of the initial hearing, it became obvious to me from the documents that there were restrictive covenants applying to the land and that I did not have sufficient evidence relating to those restrictive covenants to know whether they acted in any way as a prohibition on development of the nature sought.
As a consequence, the matter was adjourned subject to some undertakings as to costs given by Mr Creighton, agent on behalf of the applicant to enable that information to be supplied to me. That information has been supplied to me and, as I understand it, to the council and its advisers and there appears to be nothing contained in it which would prohibit or prevent me from granting an approval on conditions of the nature sought in this appeal. Nothing further has been put to me on behalf of the council that would cause me to question that position.
A number of other engineering and site merit matters have engaged the parties during the period since the original site inspection - they relating, significantly, to the design and location of possible hardstand parking and access to it to the front of Lot 1.
There is, at this stage of the proceedings, sufficient agreement between the parties to enable those matters to be dealt with by a deferred commencement condition which is yet to be drafted which would require the applicant to prepare and provide to the council for approval, plans for a hard stand parking area and vehicle access to be located on the northern side of Lot 1.
I am satisfied that leaving those matters in the hands of the council does not require the delegation to the council of such matters of moment in the proceedings as to offend against the decisions of the Court of Appeal in Mison v Randwick City Council (1991) 23 NSWLR 734 or in Weal v Bathurst City Council (2000) 111 LGERA 181.
When the hearing recommenced today Mr Reilly raised with me issues which he submitted arose out of a combination of s 80(2) and s 122(b)(iii) of the Act so as to act to require me to dismiss the appeal.
Those provide, effectively, that I, as the consent authority in this matter, must refuse the application as it is directly in breach of one of the classes of document being a condition to a development consent enumerated in s 122(b)(iii). He took me the decision of Bignold J in Rutland v Shoalhaven City Council (1997) 94 LGERA 370 in support of this proposition together with a later decision of His Honour in Moss v Kiama Municipal Council (2003) 127 LGERA 83. Essentially, the argument advanced as arising out of his Honour’s decisions is that the prohibition in s 80(2) is triggered by the relevant provision of s 122 and is absolute.
In both those instances, those matters were dealt with by way of preliminary point of law. In the present case that is not the position. On the preliminary points of law before His Honour the choice that His Honour was faced with determining was whether or not the application should be dismissed and he dealt with the questions in that fashion - however although obiter dicta at para 47 of His Honour’s decision in Moss, it is clear that His Honour contemplates the possibility of a statutory modification of the condition achievable pursuant to s 96 of the Act being an alternative route to resolution of that difficulty.
I am satisfied that in the present case, including a deferred commencement condition, again yet to be drafted, that would require the earlier consent to have been modified to remove condition 16 is an appropriate way of dealing with those statutory difficulties. I am fortified in that view by consideration of the decision of the Court of Appeal in Wingecarribee Shire Council v Pancho Properties Pty Limited (2001) 117 LGERA 104. I am satisfied, from a consideration of the matters dealt with by the reasons of Giles J on pages 112 and 113 of that decision, that a deferred commencement condition of the nature I contemplate is acceptable - that is, in my view, particularly to be inferred from paragraph 47 of the judgment on page 113 where it deals with the opportunity for other applications to cure defects of the nature raised by Mr Reilly arising out of s 80(2).
I then turn to the question of how I should treat the provisions of the 2004 DCP for dual occupancy.
Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a development control plan in determining whether to grant development consent.
From what was said in Zhang by Spigelman CJ at para 75 on pages 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 development control plan 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 as is the case in this instance as acknowledged by Mr Hargraves’ statement of evidence.
Thirdly, a provision of the development control plan directly pertinent to the application is entitled to significant weight in the decision making process but is not in itself determinative.
As a consequence, if a proposal does not meet the development control plan’s requirements, the Court may still grant consent in appropriate cases given a proper and genuine consideration of the development control plan and having considered all other matters that are relevant under s 79C of the Act.
Mr Reilly submitted to me that the decision of the Court of Appeal in North Sydney Council v Ligon 302 Pty Limited(No 2) (1996) 93 LGERA 23 operates as effectively to provide me with a prohibition in the present instance if the criteria that are set out in the development control plan have not been satisfied and that as, on his submission, those development criteria have not been satisfied, this should place an insurmountable hurdle in the face of the applicant.
I am satisfied that, as discussed in further detail below, on the criteria of the 2004, the development is appropriate on what I consider is the correct interpretation of the 2004 DCP.
However, if I be wrong in this regard, I am satisfied that a consideration of Ligon 302 Pty Limited and Zhang taken together means that, even if the relevant development control plan is not satisfied, provided I have considered its terms and explained why I do not believe they need to be followed, an application can still be approved provided it satisfies general headings of consideration pursuant to s 79(c) of the Act.
Planning evidence was given on behalf of the applicant by Mr John Boers, a planning consultant - given the conclusions which I have reached, I do not need to undertake a detailed analysis of his evidence. Mr Andrew Hargraves, a development assessment officer with the council, gave planning evidence on behalf of the council.
The evidence that was given by Mr Hargraves, in his statement of evidence, clearly notes that the proposed subdivision is permissible within the zone with council consent.
The statement of evidence considers a number of issues. One of them is noted as being the fact that Lot 2 will have no independent pedestrian access via Station Road. I set aside a significant portion of his evidence relating to vehicle access to Lot 1 as it has been rendered irrelevant by subsequent discussions and the proposal to provide vehicle access from Moreton Street to that allotment.
I am satisfied that, as a consequence of the position that Station Road is a cul-de-sac, the northern long frontage to Station Road is to a public park and, from the view, there is unlikely to be significant regular vehicle traffic into, turning at the end of and then out of Station Road, the likelihood of there being a conflict between a pedestrian seeking to exit Lot 2 and a vehicle driven by some person travelling in Station Road for purposes other than accessing Lot 2 is likely to be sufficiently improbable as to not cause any difficulty for the dual use of the driveway of Lot 2 for pedestrian and vehicle access.
Similarly I am satisfied now that the separate vehicle access is proposed for Lot 1, there is unlikely to be any significant probability of conflict between vehicles entering and accessing and exiting Lot 2 and pedestrians also accessing or exiting Lot 2. Therefore I am satisfied that, in that regard, there is no basis to refuse the application.
There is, as a consequence of the changes to DCP 14 in the 2004 DCP, no requirement for a 7.5 m frontage to a public road, merely substituting for that, in 5.2(a) of the design requirements, three elements. These are:
A minimum area of 230 sq m, which is satisfied with respect of each of the allotments;
A minimum width measured along the entire length of the allotment of 7.5 m - it is 10.36 m in each of the instances: and
Direct frontage to and access from a public road. There is no doubt that each of the proposed allotments has a direct frontage to and pedestrian access from a public road, there is no doubt that Lot 2 has direct vehicle access from a public road and there is no doubt that, if the deferred commencement condition with respect to Lot 1 is satisfied, Lot 1 will have such a vehicle access.
It is not proposed to be a strata subdivision and is therefore not in conflict with the provisions of 5.2(b) of the design requirements.
It does not create a battleaxe allotment and therefore it is not in conflict with design requirement (c) of 5.2.
The subdivision does not propose, nor has the council put that it proposes, to create a direct frontage and vehicle access to a laneway contrary to design requirements of 5.2(e).
The critical design requirement that I am obliged to address is that which is contained in Design Requirement (d) which reads:
The subdivision of dual occupancy development involving a granny or garden flat, will not be permitted”.
Granny or garden flat is defined as meaning a dwelling with a dual occupancy development which has a floor space of no more than ninety square metres and contains no more than two bedrooms where subdivision is not permitted. There is a degree of circularity between provision (d) of 5.2 and that definition.
In order to give the definition purposive meaning, I am satisfied that the appropriate interpretation is to say that where a dwelling is of not more than 90 sq m and contains no more than two bedrooms, subdivision should not be permitted where subdivision otherwise fails the tests in (a) (b) (c) and (e) of the Design Requirements of 5.2.
I am satisfied in the present position, as outlined earlier, that the proposal satisfies each of those tests and therefore there is no basis on the grounds of the development control plan to refuse the application.
However, if I be wrong in my construction of the inter-relationship between the granny or garden flat definition and the requirements of design requirement (d), I turn to consider whether, notwithstanding the fact that design requirement (d) might be construed to act as a prohibition of such subdivision absent other circumstances, circumstances exist conformably with the decision of the Court of Appeal in Zhang that on general merit grounds such subdivision should be permitted.
I am satisfied that, on the basis of such a consideration the provisions in the 2004 DCP, to which I have referred, would not act as requiring me to refuse the development application on general principles. I have reached this conclusion for the following reasons:
Firstly, Lot 2 addresses Station Road in a singular fashion and I have no evidence that that is a fashion likely to be replicated either at all or significantly elsewhere within the local government area.
The nature of the extension to Station Road, which I have described, particularly the fact of a single dwelling having a frontage to it along the south, being a side boundary to that dwelling, and the public area of Peel Park, means that there is no relevant streetscape presentation issue or lack of conformity with some form of streetscape presentation which would act as an inhibition to the granting of the application.
It was clear from the site view that the orientation of each of the dwellings is towards their relevant proposed street frontages of Moreton Street and Station Road.
There is nothing in the allotment areas of either of the proposed allotments which would offend against the allotment sizes now described as the minimum permissible ones in the 2004 version of Development Control Plan 14.
It is quite clear that, with the alteration to the vehicle access, there can be a significant and permanent fencing across the proposed common boundary so that there is no need for there to be any interdependence between the two dwellings.

I am satisfied that there is no issue of potential adverse precedent because of the unlikelihood of replication of a similar geographic circumstance for the proposal.
I am also satisfied that there is nothing of a bulk and scale nature that would also act as a barrier to the proposal - indeed there is nothing contained in Mr Hargraves’ statements of evidence that would require me to draw any alternative conclusion.
The concerns that are expressed by Mr Hargraves in his statement of evidence entirely relate to compliance with the relevant provisions that he says should be applied in a particular fashion pursuant to the 2004 DCP4. I am satisfied that given the nature of the allotments and the location of the proposed allotments, that there is no reason on general planning grounds assessed against the s 79C criteria why the appeal should not be upheld.
I have therefore concluded that, if the proposed development is assessed against the 2004 DCP as correctly construed, there is nothing in it which would prevent the appeal being upheld but if I am wrong with respect to my construction of the development control plan, and I apply it and have regard to it as I am required to do so pursuant to the decision of the Court of Appeal in Zhang, there is nothing in that which on a general assessment pursuant to s 79(c) would prevent the upholding of the appeal.
I have therefore concluded that the appeal should be upheld subject to conditions. Those conditions need to be drafted and finalised and filed electronically before any orders will be perfected and sealed and provided to the parties.
The conditions need to reflect deferred commencement conditions relating to the design of the drive and to the requirement for the applicant to seek a modification to the 1997 consent to delete clause 16 thereof.
If the council wishes it to occur, a further condition should be incorporated in those conditions requiring a median strip of sufficient length in Moreton Street to prevent vehicle movements for northbound traffic along Moreton Street to turn into the dwelling on Lot 1 or for vehicles exiting from Lot 1 to travel north along Moreton Street - such median strip to be constructed to the council specifications and at the expense of the applicant.
The exhibits, other than exhibits B and C, are returned.

Tim Moore

Commissioner of the Court

[2005] NSWLEC 68

21 February 2005