Drummond v Wingecarribee Shire Council

[2008] NSWLEC 1104

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Drummond  v Wingecarribee Shire Council [2008] NSWLEC 1104

PARTIES:
APPLICANT
Drummond Parmenter Pty Limited

RESPONDENT
Wingecarribee Shire Council

FILE NUMBER(S):
11244 of 2007

CATCHWORDS:
Development Application :- subdivision - appropriate layout

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979

CORAM:
Brown C

DATES OF HEARING:
5/03/08

EX TEMPORE DATE:
5 March 2008

LEGAL REPRESENTATIVES

APPLICANT
Mr D Balog, solicitor
SOLICITORS
D G Balog  & Associates

RESPONDENT
Mr B Bilinsky, solicitor
SOLICITORS
B Bilinsky & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

5 March 2008

11244 of 2007                Drummond Parmenter Pty Limited v Wingecarribee Shire Council

JUDGMENT

1. COMMISSIONER: This is an appeal against the refusal of Land Use Application LUA07/0587 by Wingecarribee Shire Council (the council) for the subdivision of land at the corner of Berrima Road and Gibbons Road Moss Vale (the site).

1. The proceedings were conducted as a s 34 Preliminary Conference under the Land and Environment Court Act 1979. The parties did not reach agreement under s 34(3)(a) however the parties consented to me as Commissioner disposing of the proceedings without further hearing under s 34(3)(b)(ii).

2. The council argued that the subdivision layout was a poor outcome taking into consideration that the location of future dwellings are likely to have poor amenity and their outlook will be generally limited to the back yard fencing of adjoining properties.  Also, the access corridor will provide poor passive surveillance; make it difficult for both day-to-day traffic and service or emergency vehicles to access to the subdivision.

1. The proposed subdivision is shown in Attachment 1 and provides for the re-subdivision of Part Lot 2 into 5 lots, being Lots 21 - 25.  Lot 25 contains a dwelling known as "Willow Grange".  It is an identified heritage item.  No issue was raised by the council to this lot and its relationship with "Willow Grange".

1. Lots 21 - 24 have widths ranging from 18 m (Lots 21 and 22) and 20.29 m (Lot 24) and areas (excluding the access handles) ranging from the 766 sq m (Lot 23) to 1111 sq m (Lot 24).  Access is provided to Gibbons Road via a single access driveway with each lot having reciprocal rights of way.  An engineering design was provided that showed the alignment of a road within the single access driveway.  A hammerhead turning area is provided within Lot 23.

2. The site is within Zone 2(a) under Wingecarribee Local Environmental Plan No 1989 (LEP 1989).  The subdivision of land is permissible with consent within this zone.

1. Development Control Plan 16 - Rural and Residential Standards (DCP 16) provides numerical requirements for the subdivision of land.  The site is identified within Sub Zone B1 and requires a minimum lot area of 700 sq m.  There was no dispute that the proposed development satisfied the numerical requirements in DCP 16.

1. The major issue in the proceedings was the proposed subdivision layout.  Mr Les Pawlak, the council's Manager Development Control provided a freehand sketch that, in his opinion, would be a more effective layout.  This sketch provided for the extension of the access way to the centre of the existing lot and the provision of four fan-shaped lots.  The proposed lots were generally formed from lines drawn from the opposite corners of the existing lot. Mr Pawlak stated that this layout would provide greater amenity for the future occupants of the dwellings.

2. Mr Malcolm Drummond, the applicant’s town planner disputed the conclusions of Mr Pawlak.  He stated that Mr Pawlak’s layout would be unacceptable as it creates significant areas of unusable space through the irregular shape of each lot, relies on a relatively narrow dwelling design and would likely provide rear setbacks in the order of only 3 m.  In his opinion, these lots would be largely unmarketable.

1. On this issue, I agree with Mr Drummond.  The proposed lots provide a regular shape that would allow for the erection of a range of dwelling designs.  The dwellings can be located across each lot and thereby provide a usable area of private open space behind the dwellings.  Importantly, the lots satisfy the numerical requirements of the DCP 16.  I do not accept that greater amenity is likely to be provided by the layout suggested by Mr Pawlak for the reasons suggested by Mr Drummond.

2. Mr Pawlak also raised concern over the design of the proposed access road for both day-to-day traffic and service or emergency vehicles to access to the subdivision.  Mr Ron Tweedie, a civil engineer, stated that his road design satisfies the RTA design standards for a 8.8 m rigid truck and also satisfies (and exceeds in part) the council standards for the width of driveways in battle-axe handles.  On this basis, he saw no need for any further amendment to the design of the access road.  I agree with the conclusions of Mr Tweedie.

1. In my view, the concern of Mr Pawlak that the access road provides poor passive surveillance cannot be supported after taking into consideration the limited opportunities for the location of the access way and the compliance with the relevant design standards.  While the requirements in the document Crime prevention and the assessment of development application apply to the proposed development (as it is required to be considered under s79C of the Environmental Planning and Assessment Act 1979) I agree with Mr Drummond that the applicability of this document is extremely limited in the consideration of subdivision applications.  Clearly, this document has greater relevance in the assessment of potential impacts created by a proposed building.

1. For the reasons mentioned in the preceding paragraphs, the Orders of the Court are:

   1) The appeal is upheld.
   2) Land Use Application LUA07/0587 for the subdivision of land into 5 lots at the corner of Berrima Road and Gibbons Road Moss Vale is approved subject to the conditions in Annexure A.
   3) The exhibits are returned.

   __________

   G T Brown

Commissioner of the Court