Croft v Gosford City Council

[2012] NSWLEC 1106

Land and Environment Court

New South Wales

Medium Neutral Citation:

Croft v Gosford City Council [2012] NSWLEC 1106

Hearing dates:

23 April 2012

Decision date:

01 May 2012

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. The appeal is upheld.

2. Development Application No 39861/2010 for the subdivision of the existing property into two allotments and the construction of a new dwelling on Lot 2 is approved subject to the conditions in Annexure A.

3. The exhibits are returned except for exhibits 1, A, B and C.

Catchwords:

DEVELOPMENT APPLICATION - Torrens title subdivision, SEPP 1 objection for minimum lot size, desired future character.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Gosford Planning Scheme Ordinance

Cases Cited:

Brand v Gosford City Council [2010] NSWLEC 1010
David Kettle Consulting Services v Gosford City Council 10126 of 2002
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780
Tuite v Wingercarribee Council (No 2) [2008] NSWLEC 321

Texts Cited:

Development Control Plan No. 112 Residential Subdivision
Development Control Plan No. 155 Single Dwellings and Ancillary Structures
Development Control Plan No. 159 Character Amendment No. 1

Category:

Principal judgment

Parties:

Mrs Margaret Cecele Croft (Applicant)

Gosford City Council (Respondent)

Representation:

Counsel
Mr Philip Clay (Senior Counsel) (Applicant)

Mr Ian Woodward (Solicitor) (Respondent)
Solicitors
Joseph P Saad & Co (Applicant)

Storey & Gough (Respondent)

File Number(s):

10072 of 2012

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Gosford City Council (the Council) of Development Application DA39861/2010 (the application) for a Torrens Title subdivision of the property into two lots and the construction of a new dwelling on the subdivided allotment, at 25 Remembrance Drive, Wamberal, being Lot 13 DP219829 (the site).

1. The Court, in the company of the parties and experts conducted a viewing of the site and the adjacent area and neighbouring properties along the length of Remembrance Drive and Ocean View Drive. There were no resident objectors to the proposal present at the site inspection.

Issues

1. The Council's contentions can be summarised as:

• Lot Size:
• The proposed size of Lot 1, 468.03m2, is unacceptable as it does not comply with the numerical requirements of the planning controls and would be excessively constrained resulting in adverse impacts;
• Both lots would have a slope greater than 15% and such allotments are to have an area no less than 650m2;
• The undersized allotments will not provide sufficient area to enable the construction of satisfactory dwellings with suitable private open space and parking;
• The State Environmental Planning Policy No 1 - Development Standards objection provided by the applicant fails to demonstrate that compliance with the controls is unreasonable and unnecessary.
• Character:
• The proposed subdivision is inconsistent with the character of the surrounding area and the established subdivision pattern;
• The subdivision would unduly restrict the provision of adequate landscaping and open space;
• The proposed dwelling on the subdivided allotment will compromise the design opportunities for the future redevelopment of the allotment containing the existing dwelling;
• The proposed new dwelling is not sympathetic to the existing development.
• Public Interest:
• The proposal is not in the public interest as it would set an undesirable precedent in the Wamberal locality.

The site and its context

1. 25 Remembrance Drive, Wamberal is located on the western side of Remembrance Drive. The rear of the site backs onto Ocean View Drive. The site has a frontage to Remembrance Drive of 22.86m, a frontage to Ocean View Drive of 21.335m and a total area of 1012m2. The site falls to the east, towards Remembrance Drive. The site contains a single storey weatherboard clad cottage located adjacent to the western boundary, with a masonry block retaining wall along the western boundary which accommodates the level drop from Ocean View Drive footpath to the floor level of the dwelling. There is a detached single car garage located near the eastern boundary, accessed from Remembrance Drive.

1. To the north, 27 Remembrance Drive contains a recently constructed large two storey dwelling fronting Remembrance Drive. To the south, 23 Remembrance Drive contains a two storey dwelling fronting Remembrance Drive.

1. The immediate area consists of single and double storey residential dwellings and the block bounded by Remembrance Drive, Ocean View Drive and Wiles Avenue also contains dual occupancy developments.

1. Wamberal Lagoon is on the eastern side of Remembrance Drive and Remembrance Drive leads to Wamberal-Terrigal Beach to the south-east.

Background and the proposal

1. The Council refused DA 39861/2010 on 7 June 2011.

1. The proposal is for the Torrens Title subdivision of the property into two allotments. The proposed Lot 1, with a site area of 468.03 m2 and fronting Ocean View Drive, will contain the existing dwelling and a new garage accessed from Ocean View Drive. Lot 2, with a site area of 550 m2 and fronting Remembrance Drive, will contain a proposed two storey dwelling. The existing single car garage located on proposed Lot 2 is to be demolished.

1. There is a current development consent for the site, which provides for a new dwelling directly in front of the existing dwelling, wrapping around a pool on the northern side and building forward to match the approximate front setback of the adjoining dwellings on Remembrance Drive. I note that the proper approach for the Court is to focus on the development that is the subject of this appeal, namely subdivision, the garage addition on Lot 1 and the proposed dwelling on Lot 2, rather than compare the application to the consent. This approach is consistent with Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 and Tuite v Wingercarribee Council (No 2) [2008] NSWLEC 321, where Preston CJ confirmed that the obligation is to determine the particular development application before the Court and not by reference to a comparison with a previous consent.

The planning framework

1. State Environmental Planning Policy No 1 - Development Standards (SEPP 1) allows an objection to be made in respect of the relevant development standards for the site. This policy provides flexibility in the application of planning controls in circumstances where strict compliance would be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in 5 (a) (i) and (ii) of the EPA Act.

1. The site is zoned residential 2(a) under the provisions of the Gosford Planning Scheme Ordinance (GPSO). The proposed subdivision and construction of a new dwelling on the subdivided lot is permissible with consent.

1. Clause 10 of the GPSO requires the consent authority to take into consideration the objectives of the zone and the character of the site and surrounding area, as follows:

(3) The Council must not grant consent for development on land within a zone unless it has taken into consideration the objectives of the zone and the consistency of that development within those objectives as well as the objectives of the Local Government Act 1993 relating to ecologically sustainable development.

(4) The Council must not grant consent for development unless it has taken into consideration the character of the development site and the surrounding area, where, for the purpose of this provision, character means the qualities that distinguish each area and the individual properties located within that area.

1. The objectives of Zone No. 2(a) are:

(a) to make provision for the orderly and economic development of suitable land for a variety of low density housing forms which are essentially domestic in scale and which have private gardens; and

(b) to provide for other uses, but only where they:

(i) are compatible with a low density residential environment and afford services to residents at a local level; and

(ii) are unlikely to adversely affect residential amenity or place demands on services beyond the level reasonably required for low scale housing.

1. Clause 30AAA of the GPSO requires the consent authority not to grant consent to the subdivision of land within zone 2(a) unless:

(a) the area of any allotment to be created by the subdivision is not less than 450 square meters; and

(b) not more than 10 per cent of the allotments to be created by the subdivision have an area of less than 550 square meters.

1. The relevant Development Control Plans for the proposal are:

• Development Control Plan No. 112 Residential Subdivision (DCP 112)
• Development Control Plan No. 155 Single Dwellings and Ancillary Structures (DCP 155)
• Development Control Plan No. 159 Character Amendment No. 1
• (DCP 159)

1. The objectives of DCP 112, at 3.1, include:

3.1.1 To provide sufficient area and dimensions to enable the construction of dwellings, ancillary outbuildings, private open space, vehicle access and parking.

3.1.2 To ensure that allotments and the resulting residential development is in character with the locality and specific landform features of the site such as slope, aspect, vegetation, and position in relation to adjacent building.

3.1.3 To ensure that elements of the site including size, slope, orientation, etc. provide maximum opportunities for future building design, privacy, orientation, solar access and useable outdoor living space on site.

3.1.4 To encourage a variety of allotments to cater for the different housing needs within the community.

1. Clause 3.2 of DCP 112, Allotment Size, refers to the minimum allotment sizes in the GSPO and states that the minimum allotment sizes are increased for sites with slopes greater than 15% and less than 20%, where the minimum area is 650 m2 and the minimum width of the site is 18 m. Clause 3.2 notes that the slope of the land is measured as the steepest slope perpendicular to the contours.

1. Clause 8 of DCP 155, Site Occupancy for Dwellings and Ancillary Structures has the following objectives:

a To provide adequate private open space on each developed site.

b To provide adequate separation between dwellings on separate lots to ensure privacy is retained, fire safety issues are satisfied and adequate light and ventilation is available.

c To provide access to rear yard areas.

d To provide adequate room onsite for Open Space Area.

1. Clause 7 of DCP 155 defines 'Open Space Area' as:

That part of a site not occupied by any building and which is predominately landscaped by way of the plating of gardens, lawns, shrubs or trees and is available for use and enjoyment by the occupants of the building erected on that site and includes any open space roof-top pedestrian terraces available for use by those occupants but does not include so much of the site area as is used for driveways, parking areas.

1. Clause 9.2.2 of DCP 155 specifies the building line in all residential zones is to be 6 metres between a building and a public place.

1. DCP 159 provides detailed statements for the existing and desired character. Clause 2.2 of DCP 159 defines character as having two components, existing character and desired character. Existing character relates to current patters of natural and urban geography that can be observed on each development site and surroundings. Desired character provides objectives for future development that emphasis important existing qualities or features that should be protected or enhanced.

1. The site is located within Wamberal 5, identified by DCP 159, 'Open Woodland Foreshore'. The existing character of Wamberal 5, as described by DCP 159, can be summarised as an established residential subdivision on gentle to moderate slopes along a coastal lagoon foreshore, with woodland remnants, varying from open and scattered to dense copses and corridors of low eucalypts which form a canopy over the gardens. Houses range from traditional coastal cottages to large two storey houses designed to capture views.

1. The desired character for Wamberal 5, in summary, is that it should remain a leafy low-density residential foreshore where the current backdrop is enhanced by 'greening' of gardens and street verges to screen new development and complement the open bushland canopy. Development should avoid disturbing natural slopes and existing trees, it should step to follow the natural slope and incorporate large window areas and decks.

Lot Size

Evidence

1. Expert planning evidence was heard from Mr Tony Tuxworth for the applicant and Mr Brett Newbold for the Council.

1. Mr Tuxworth provided an objection under SEPP 1 to show why strict compliance with the development standard, clause 30AAA of the GPSO, for site area is unreasonable and unnecessary in the circumstances of this case. The SEPP 1 objection addressed the purpose of the development standard (in the manner set out by Lloyd J in Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46), which is to provide sufficient area for a house and curtilage, consistent with the character of the area. According to Mr Tuxworth, the 10% restriction on smaller lots is intended to provide housing choice by allowing for smaller lots, without creating a change in policy to provide for enclaves of smaller housing lots. The conclusion of the SEPP 1 objection by Mr Tuxworth is that the proposed development is consistent with the underlying objectives of the development standard, as there is sufficient area for a dwelling and curtilage on each of the proposed allotments, as demonstrated by the existing dwelling on Lot 1 and the proposed dwelling on Lot 2. The existing dwelling on Lot 1 provides an affordable dwelling on a smaller parcel of land, without creating an enclave of smaller lots in one area.

1. During the site inspection, the planning experts pointed out dual occupancies and smaller lots in the block bounded by Remembrance Drive, Ocean View Drive and Wiles Avenue, including 21 Remembrance Drive and 153 Ocean View Drive (directly behind 21 Remembrance Drive) which both have site areas less than 550 m2 according to Mr Tuxworth.

1. The planning experts agree that the slope of the site is greater than 15%. Mr Tuxworth's Statement of Evidence (Exhibit D) refers to a slope analysis prepared by another consultant and he states that he agrees with the slope being 10% for Lot 1 and 17% for Lot 2. Mr Newbold, in his Statement of Evidence (Exhibit 3) provided his own detailed analysis of the site showing that Lot 1 had areas of gently sloping land (less than 15%) and moderately sloping land (15 - 20%) and Lot 2 had areas of gentle, moderate and steeply sloping land (greater than 20%).

1. The planning experts agree that the proposed dwelling on Lot 2 complies with the objectives of DCP 155 and that the architectural character of the dwelling is acceptable. They agree that the amenity of neighbouring properties would not be compromised by the proposed development.

Findings

1. As the legal existence of the proposed allotments would continue beyond the life of the built form of the existing and proposed dwellings, I must assess the subdivision proposal on its own merits and not solely with reference to the proposal for each allotment in this application.

1. I accept Mr Tuxworth's evidence that the underlying purpose of the development standard regarding lot size is the provision of sufficient area for a house and curtilage, consistent with the character of the area and that smaller lot sizes are acceptable on the basis that they form the minority and are scattered amongst the larger lots. I find, therefore, that the SEPP 1 objection is well founded, as both allotments would be able to accommodate a dwelling that complies with the objectives of DCP 155 and each allotment has its own street frontage.

1. Mr Newbold's analysis of the slope of the site goes beyond the definition of slope in the Clause 3.2 of DCP 112 (which takes the steepest slope as the overall slope of the land). I find Mr Newbold's detailed approach in his analysis diagram more useful than the DCP 112 definition in determining what areas and proportions of the site are steeply sloping and how the gradient may affect the development of the site.

1. The steepest area of the site is located in the central section of the larger Lot 2 and the proposed dwelling on Lot 2 has utilised the slope to provide a ground floor level entry level for the garage, rumpus and guest room and the main bedroom and living areas are located on the first floor with level access at the rear to ground level. The proposal for Lot 2 demonstrates that a dwelling that is consistent in character with surrounding development and complies with the objectives of DCP 155 can be located on the proposed allotment.

1. The open space area definition (clause 7 DCP 155) provides a broad definition that includes terraces and decks along with gardens. The proposed dwelling on Lot 2 has a large deck area off the main living rooms on the eastern side of the property overlooking Wamberal Lagoon. I accept that not everyone wants the burden of maintaining a large private rear garden and that the deck area provides ample private recreation area for the occupants of the proposed dwelling.

1. The proposed Lot 1 mostly consists of gently sloping areas, according to Mr Newbold's analysis diagram. The planning experts agree that a dwelling, which complies with the objectives of DCP 155, could be accommodated on Lot 1. The floor space ratio (FSR) control for the site of 0.5:1 (clause 29B GPSO) will ensure that a smaller lot is only able to accommodate a smaller dwelling.

1. The poor siting of the existing dwelling relative to the neighbouring dwellings fronting Ocean View Drive, immediately adjacent to the street boundary, is a function of the consent granted by Council prior to its construction. The existing dwelling, which orientates to the east, has a large deck with a northern and eastern aspect and because of the dwelling's proximity to the street boundary, the occupants will enjoy a relatively generous rear garden and elevated aspect following the subdivision of the property.

Character

Evidence

1. Expert landscape evidence was heard from Mr Ray Fuggle for the applicant and Ms Narelle Sonter for the Council.

1. The landscape experts agree that the proposal will not require the removal of any existing trees on the site and that the band of indigenous canopy trees on the western side of Remembrance Drive, specifically the Broad-leaved paperbark street trees located in the wide verge in front of 25 Remembrance Drive, will be retained.

1. Ms Sonter notes, in her Statement of Evidence (Exhibit 5), that there are no details provided of the driveway design to provide assurance to the Council that the driveway will not impact on the existing tree root zones adjacent to the proposed driveway and crossover and that the configuration of the driveway is shown differently on the architectural plans (Exhibit A Site Plan and Ground Floor Plan) and the landscape plan (Exhibit B). Mr Fuggle agrees with Ms Sonter that the driveway configuration shown on the architectural plans may have an adverse impact on the street trees and that the driveway configuration shown on the landscape plan, which curves gently between the trees and is a single car width for the portion of the crossover, should prevail over that shown on the architectural plans. In the Joint Expert Statement - Landscape (Exhibit 6), Ms Sonter agrees with Mr Fuggle that the configuration of the driveway as shown on the landscape plan should be followed in order to retain the street trees at the northern end of the verge.

1. The landscape experts agree that there are no existing canopy trees located on the site. The landscape experts disagree as to whether there is sufficient deep soil area to plant trees that will, upon maturity, contribute to the open bushland canopy that forms a backdrop to the dwellings along Remembrance Drive, in accordance with the desired character statement (Wamberal 5, DCP 159). According to Ms Sonter, an uninterrupted margin of 8 m is required at the rear of Lot 1 to provide for 3 canopy trees. The future development of Lot 1, with a front setback of 6 m (as required by clause 9.2.2 of DCP 155) would leave insufficient area at the rear of the allotment for the planting of canopy trees.

1. According to Mr Fuggle, canopy trees could be planted at the rear of Lot 1 given the location of the existing dwelling directly adjacent to the Ocean View Drive boundary with a rear setback to the shared boundary of 7 m and additional deep soil under the uncovered section of the deck. If the allotment is redeveloped in the future, as demonstrated by the 'possible' scenario (Exhibit 3), canopy trees could be planted in the 6 m front setback.

1. The applicant amended the proposal during the proceedings, with the agreement of the respondent, to delete a proposed retaining wall along the boundary between the allotments and to provide a L shaped retaining wall to the south-western corner of the proposed dwelling, which is setback from the shared boundary by 2 m and is 4 m long on the north-south axis and 3 m long on the east-west axis.

Findings

1. There are no existing canopy trees on the site. The desired character for Wamberal 5, Open Woodland Foreshore, requires the following:

These should remain leafy low-density residential foreshores where the current scenic quality of Gosford City's prominent foreshore backdrop is enhanced substantially by further greening of gardens and street verges in order to screen new development and complement the open bushland canopy that surrounds most existing dwellings.

1. The desired character statement does not require the reinstatement of canopy trees on sites where there are no existing canopy trees. It requires the landscape proposal complement the established canopy. However, there is an opportunity in granting consent for the subdivision to require the applicant to plant three bushland canopy trees in a position that does not unduly compromise any future development of the site, in order to contribute towards the reinstatement of the bushland canopy in the locality. The three trees proposed by the landscape plan (Exhibit B) at the rear of Lot 1 could be replaced with three indigenous bushland canopy trees, according to the advice of the landscape experts. The following condition is added at Condition 4.12:

Provision of three (3) advanced canopy trees of a native species that are indigenous to the locality are to be planted one (1) metre from the rear boundary of Lot 1 in lieu of the three trees indicated on the landscape plan prepared by Ray Fuggle and Associates dated 9.11.11 being drawing No L-01, sheet 1 of 1, Issue B. These trees are to be planted on the site prior to the issue of the subdivision certificate. An amended landscape plan is to be submitted to Council's satisfaction with the Construction Certificate.

1. The deletion of the retaining wall along the shared boundary between the allotments will provide additional deep soil without an obstruction.

1. The proposal for Lot 2 includes provision for two Broad-leafed paperbarks at each corner of the front boundary, which will contribute to the existing screening of the development when viewed from Wamberal Lagoon.

1. I agree with the landscape experts that the driveway should be configured as shown on the landscape plan (Exhibit B) and not as shown on the architectural plans (Exhibit A), in order to avoid an adverse impact on the street trees and accordingly condition 11.7 is added as follows:

The location of the driveway to the proposed dwelling on Lot 2 is to be as shown on the landscape plan prepared by Ray Fuggle and Associates dated 9.11.11 being Drawing No L-01, sheet 1 of 1, Issue B. An amended site plan showing the location of the driveway is to be submitted to Council's satisfaction with the Construction Certificate.

1. I agree with Ms Sonter that there is not adequate protection for the existing street trees on the Remembrance Drive verge. A condition is added at 11.9 to require the applicant to provide a Tree Protection Plan, to the satisfaction of Council's Tree Officer, prior to the issuing of a Construction Certificate, as follows:

A detailed 'Tree Protection Plan' and specification document for the site and the street trees located in front of the site on the Remembrance Drive verge is to be prepared by an appropriately qualified arborist and approved by Gosford City Council's Tree Officer prior to issue of the Construction Certificate. The tree protection plan is to include details and specifications of tree protection measures for trees to be retained, including fencing, trunk and ground protection and specifications for excavation and root pruning within the tree protection zones of trees to be retained.

Public Interest

1. I have considered the two judgments provided by the Respondent during submissions, both regarding the proposed subdivision of 3 Clairvoux Road, Wamberal, Brand v Gosford City Council [2010] NSWLEC 1010 (Brand) and David Kettle Consulting Services v Gosford City Council 10126 of 2002 (Kettle). 3 Clairvoux Road is a corner block. The proposal in Brand was for three storey buildings, which did not provide a satisfactory relationship with the adjoining properties, according to Commissioner Murrell (paragraphs 63-4). She found that the proposal did not adequately demonstrate that a dwelling with private open space could be accommodated without adverse impacts (paragraph 62). The proposal before the Court, in contrast, has two street frontages and the proposed dwelling on Lot 2 is consistent with the streetscape and complies with the open space requirement of DCP 155.

1. I accept that precedent can be a valid planning consideration ( Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75) however, in this case, the circumstances are peculiar to the site and the application and, in my view, are not readily transferable to other sites in the area. Any future subdivision application in the Wamberal area should be considered on its own merits.

Orders

1. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No 39861/2010 for the subdivision of the existing property into two allotments and the construction of a new dwelling on Lot 2 is approved subject to the conditions in Annexure A.

3. The exhibits are returned except for exhibits 1, A, B and C.

Susan O'Neill

Commissioner of the Court

Decision last updated: 03 May 2012