Danckert v Cessnock City Council

[2012] NSWLEC 1123

Land and Environment Court

New South Wales

Medium Neutral Citation:

Danckert v Cessnock City Council [2012] NSWLEC 1123

Hearing dates:

21 and 30 March 2012

Decision date:

02 April 2012

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

(1)The appeal is dismissed

(2)The development application (DA8/2010/565/1) for the demolition of an existing dwelling and outbuildings and the erection of 4 single storey 2 bedroom dwellings and a 4 lot strata subdivision at 128 Congewai Street, Aberdare is refused, and;

(3)The exhibits, except Exhibit 1, may be returned.

Catchwords:

DEVELOPMENT APPLICATION - multi dwelling housing. Consistency with planning objectives of draft planning instrument that is imminent and certain. Existing and desired future character.

Cases Cited:

Blackmore Design Group Pty Limited v North Sydney Council 2001 NSWLEC 279
Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289

Texts Cited:

Cessnock Local Environmental Plan 1989
Cessnock Local Environmental Plan 2011
Environmental Planning And Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy - Seniors Living

Category:

Principal judgment

Parties:

Danckert (Applicant)

Cessnock City Council (Respondent)

Representation:

Counsel
Ms P Wright, solicitor (Applicant)

Ms K Gerathy, solicitor (Respondent)
Solicitors
PJ Donnellan & Co Pty Ltd (Applicant)

HWL Ebsworth Lawyers (Respondent)

File Number(s):

11001 of 2011

Judgment

This determination was given extemporaneously and has been edited prior to publication

1. This is an appeal against the refusal by Cessnock City Council (council) of the development application (DA8/2010/565/1) under the Environmental Planning And Assessment Act 1979 for the demolition of an existing dwelling and outbuildings and the erection of four (4) single storey two bedroom dwellings and a four (4) lot strata subdivision at 128 Congewai Street, Aberdare.

1. The site, its locality and the history of the application are in the Amended Statement of Facts and Contentions (Exhibit 1).

Planning framework

1. The development application was lodged on 24 August 2010 and the site was zoned residential 2(a) under Cessnock Local Environmental Plan 1989 (LEP 1989). Development for the purpose of a multiple dwelling is not identified as prohibited under the 2(a) zone and is therefore permissible with consent as an innominate use.

1. On 23 December 2011, Cessnock Local Environmental Plan 2011 (LEP 2011) commenced and the site was zoned R2 Low Density Residential. Multi dwelling housing is prohibited within this zone.

1. LEP 2011 includes the savings provision (cl 1.8A) which provides:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

1. The parties agree that as LEP 2011 has been made, it is "imminent and certain". They also agree that weight should be given to LEP 2011 and its savings clause. In relation to these matters, both Ms Wright, for the applicant and Ms Gerathy, for the council, referred to relevant authorities, including the decision of Lloyd J in Blackmore Design Group Pty Limited v North Sydney Council 2001 NSWLEC 279 where his Honour at [30] states:

Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the latter instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further enquiry. It is necessary to look at the aims and objectives of the later instrument and see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is antipathetic thereto.

1. The parties also referred to the decision of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289 where at [59], Mason P said:

.....The transitional provisions require LEP 2000 to be taken into account, albeit on the basis that it is not to be regarded as "made"..... The obvious intent is that the consent authority may look at those provisions of LEP 2000 that are pertinent to the zone and the proposed development.

1. Ms Wright and Ms Gerathy made competing submissions as to whether the proposal was consistent with the objectives of the Plan and the R2 zone in LEP 2011. Their differences are discussed later in this judgment.

1. Cessnock Development Control Plan 2011 also commenced on 23 December 2011. It contains no savings provisions and is a relevant consideration. Part D.2 of DCP 2011 provides objectives, performance criteria and controls for urban housing, including multi-dwelling housing.

Issues

1. The key issues in dispute between the parties can be summarised as whether:

(1)   the proposal is contrary to the strategic land use planning for the area, as multiple dwellings are a prohibited use under the R2 zone in LEP 2011

(2)   the proposal is inconsistent with the existing and desired future character for the streetscape and the area; and

(3)   the proposal achieves acceptable amenity through the provision of open space, landscaping and solar access.

Evidence

1. On 30 January 2012, the appeal commenced on site as a conciliation conference under s 34 of the Land and Environment Court Act 1979. The parties did not reach agreement and the conference was terminated.

1. The parties later agreed to my presiding over a hearing, which was held on 21 and 30 March 2012. They also agreed that the site view could be considered as evidence in the proceedings.

1. The Court heard expert planning evidence from Ms K Wells, for the council, and Mr A Tuxworth, for the applicant. The key disagreement between the experts was whether the proposal was consistent with the existing and desired future character of the streetscape and the area and therefore met the objectives of the zone in LEP 2011.

1. Mr Tuxworth and Ms Wells agreed that the existing character of the area is predominantly detached dwelling houses on large allotments averaging around 1,000 sqm. There are examples of dual occupancy and multi unit housing within the locality, including a development approval for four multi unit dwellings on the adjoining land (130 Congewai Street), which is almost the same as the proposal before the Court.

1. Ms Wells considered that the primary area to consider was the visual catchment of the site and, in her opinion, the character at the eastern end of Congewai Street was different to the area around the site which was predominantly single storey dwellings forming a transition to the nearby rural lands.

1. Ms Wells and Mr Tuxworth held different opinions on the likely future character of the area. Mr Tuxworth stated that dual occupancy developments and subdivision remain permissible within the zone under LEP 2011 and a form of multi unit housing is permissible under State Environmental Planning Policy - Seniors Living (SEPP Seniors Living). The future character for the area would therefore include development similar to that which is proposed.

1. Ms Wells considered the character of the area would remain predominantly detached dwellings on large allotments, which reflect the density that is sought by the objectives of the R2 zone. She stated that dual occupancy, subdivision and seniors living developments are permitted in limited circumstances within the area. In her opinion, the type of dual occupancy development that is permitted under LEP 2011 is low density form of development, which would maintain the existing character of the area.

1. Mr Tuxworth and Ms Wells therefore held different opinions on whether the proposal would be consistent with the character of the streetscape and the locality and in particular whether it would meet the objectives of the R2 zone "to provide for housing needs of the community within a low density residential environment".

1. Mr Tuxworth and Ms Wells disagreed on what constitutes a "low-density residential environment". Mr Tuxworth gave considerable weight to floor space ratio (FSR) as being an indicia of density. He stated that as the proposal had a FSR of 0.43:1, it is less than what is permitted for a dual occupancy development on the site of 0.5:1. He considered the density of the proposal to be similar to all existing developments within the locality.

1. Mr Tuxworth also considered the proposal would be of a similar bulk, scale, and intensity to other developments permissible within the zone. He gave the example that the site could be subdivided into two allotments and developed with two dual occupancies similar to the current proposal.

1. Ms Wells considered that density is primarily the number of dwellings on one parcel of land. She stated that FSR is a measure of bulk and scale, and that other factors, such as the number of car spaces, site coverage, landscaping should also be considered in determining whether a proposal is low density.

1. Ms Wells considers that the proposal would read as a medium density development and is inconsistent with the low-density character sought by the planning control.

1. Ms Wells did not accept that the site could be subdivided as it does not meet the minimum lot size for a battleaxe subdivision and access is not available from the rear lane under council's policy.

1. Ms Wells also raised issues about the amenity of the proposed units given that the size of the open space does not meet the minimum requirement of 50 sqm in DCP 2011 and does not achieve adequate solar access. She also considered the landscaping to be inadequate and that the excessive hardstand and driveway create a "gun barrel" effect which impacted on the streetscape and the amenity of residents in the development.

1. Mr Tuxworth considered that the north-northwest orientation of the open space and living areas would achieve reasonable solar access given the constraints and orientation of the site. Further, the area and dimensions of the open space are adequate to meet the needs of the development.

1. The landscaping, in his opinion, is also acceptable and consistent with other developments in the area, including the development approved on the adjoining site.

Findings

1. LEP 2011 has commenced and is imminent and certain and the proposed multi dwelling housing development is prohibited in the R2 Low Density Residential Zone. The savings clause means that the prohibition is not determinative of the application and the proposal is still permissible under the provisions of LEP 1989.

1. However, consistent with the authorities, LEP 2011 should be given considerable weight. The key question before the Court is whether the proposal would achieve the planning objectives sought by the new planning regime, in particular, the relevant objective of the R2 zone which provides:

to provide for the housing needs of the community within a low density residential environment.

1. Ms Wright submits that this objective is similar to the relevant objectives for the 2(a) zone under LEP 1989:

primarily to provide for low density residential development, and

to enable the residential flat buildings which are compatible with single dwelling development.

1. The evidence of Mr Tuxworth is that the proposed form of development is similar to what has been approved under LEP 1989 and which met the objectives for the 2(a) zone as being "low density residential development...." which is "...compatible with single dwelling development".

1. Mr Tuxworth considers the character of the area includes dual occupancy and multi dwelling development and that this character will continue under LEP 2011 and other planning instruments such as SEPP Seniors Living. Further, he considers the proposal to be low density due to its FSR and to be no different to the bulk, scale and intensity of development that would be approved on the site that is permissible within the zone under LEP 2011.

1. Ms Wright submits that Mr Tuxworth's evidence should be preferred over that of Ms Wells as her Statement of Evidence is inconsistent with her advice during the processing of the development application. Further, Mr Tuxworth's evidence is consistent with an earlier assessment undertaken by an independent planning consultant, on behalf of the council, during the assessment on the application.

1. Ms Wright submits that based on Mr Tuxworth's evidence the proposal provides for the housing needs of the community in a form that is not antipathetic to the character of the area and meets the objectives of the R2 zone. In her submission, other issues raised by council, such as solar access and open space, would not warrant refusal of the development application.

1. Mr Gerathy submits that the objectives for the R2 zone under LEP 2011 are significantly different to those for the 2(a) zone under LEP 1989 and reflect a significant change to the housing strategy for the local government area. She submits that the 2(a) objective in LEP 1989 envisaged primarily low density housing but with other higher density housing, such as residential flat buildings, also being permissible but only if they are compatible with single dwelling development. Whereas, the R2 zone envisages only a low density environment.

1. Ms Gerathy referred to the City Wide Settlement Strategy (Strategy), which formed the basis of LEP 2011. The Strategy seeks to provide higher density residential development closer to urban centres. It recommends for each land use zone a dwelling density (low, medium or high) and permissible dwelling types to achieve the desired density.

1. The R2 zone is low density with dwelling houses and dual occupancies identified as permissible. Whereas multi dwelling housing is identified as being medium density and permissible in the R3 medium density zone. This has been reflected in the zoning in LEP 2011 where residential flat buildings and multi dwelling housing, which were previously permissible as innominate uses within the 2(a) zone are now explicitly prohibited in the R2 zone.

1. The proposed form of development, which proposes four dwellings on a single allotment is clearly medium density. The question is whether it is compatible with a low-density residential environment.

1. The agreed position of the experts is that when viewed front on from the street, the proposal will appear as a single storey dwelling on a single allotment. However, from other vantage points in the street, from adjoining properties and the rear lane, the proposal will appear as a number of dwellings running along the length of the site.

1. The dwellings, together with their garages and the driveway, occupy a significant area of the site, with the rear dwelling being setback only one metre from the boundary to the laneway. There is a break between the buildings but this is occupied largely by the hardstand for visitor parking. The proposal provides little opportunity for landscaping (about 8.3% of the site) other than in the front setback area.

1. The four dwellings would be clearly visible from a number of vantage points, including along the length of the driveway, and would be of a character that is not consistent with the predominant character that exists in the area or is sought by the planning controls.

1. There are a number of examples of multi unit housing in the wider locality, including an approval on the adjoining lot. However, I do not accept that this is the form of development sought by the planning controls. On the contrary, the exclusion of this form of development as a permissible use in the R2 zone under LEP 2011 would appear to be in response the compatibility of this type of development with the predominant character of the area.

1. I also do not accept Mr Tuxworth's evidence that the proposal would be low density because of its FSR, nor that it is of a bulk and scale that is no different to other forms of development that are permissible with a zone, such as subdividing the lot into two with a dual occupancy development on each lot. This hypothetical development relies on either a variation to the subdivision control for minimum allotments or access off the rear lane, which is not supported by council's policy. Even if the rear access were able to be achieved, it is unlikely that the form of development would remain the same as that proposed. In particular, the front setback of a dual occupancy is unlikely to be one metre off the lane, the separation distance between the two dual occupancies would probably increase and the extent of hardstand would be likely to change as access along the length of the site would not be required.

1. I also do not accept that it has been demonstrated that solar access to the open space and living areas is acceptable. The shadow diagrams do not include RLs, shadows from adjoining buildings and the fence at 126 Congewai or fences between the open space of the units. While solar access may or may not achieve three hours, it is clearly not optimal and does not achieve the objectives in cl 2.4.5 of DCP 2011 given that a northerly orientation could clearly be achieved with a different form of development of less density.

1. Similarly, the open space, while it may or may not comply with the numerical controls for area in cl 2.3.5 of DCP 11, it is not optimal and does not achieve the objectives of the control.

1. For these reasons I find the proposal is not consistent with the predominant existing character of the area or with the character sought by LEP 2011. I note the opinion of Spigelman CJ in Terrace Tower at [7] where his Honour states:

Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the preexisting instrument, which would in a substantial way undermine that objective.

1. The objective of the R2 zone seeks to meet housing needs in a low-density environment. This would maintain the predominant character of the area. The proposal would undermine this objective in a substantial way and therefore cannot be approved.

1. The other matters raised in Ms Wright's submission in relation to delays and inconsistencies in the assessment of the development application are not matters which would change this conclusion.

Orders

1. Orders of the Court are therefore;

(1)   The appeal is dismissed

(2)   The development application (DA8/2010/565/1) for the demolition of an existing dwelling and outbuildings and the erection of four (4) single storey two bedroom dwellings and a four (4) lot strata subdivision at 128 Congewai Street, Aberdare, is refused

(3)   The exhibits, except Exhibit 1, may be returned.

Annelise Tuor

Commissioner of the Court

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Decision last updated: 21 May 2012