Falson and Associates Pty Ltd v Blue Mountains City Council
[2005] NSWLEC 375
•06/27/2005
Land and Environment Court
of New South Wales
CITATION: Falson & Associates Pty Ltd v Blue Mountains City Council [2005] NSWLEC 375
PARTIES: APPLICANT
Falson & Associates Pty LtdRESPONDENT
Blue Mountains City CouncilFILE NUMBER(S): 10175 of 2005
CORAM: Bly C
KEY ISSUES: Development Application :- Subdivision of land - streetscape - character of the area - landscape - site amenity
LEGISLATION CITED: Blue Mountains Local Environmental Plan No. 4
State Environmental Planning Policy No. 1 - Development Standards
Environmental Planning and Assessment Act 1979
Blue Mountains Local Environmental Plan 2005
Blue Mountains Environmental Management Plan 2002 - Residential Development StrategyDATES OF HEARING: 16 and 27/06/2005 EX TEMPORE JUDGMENT DATE: 06/27/2005
LEGAL REPRESENTATIVES: APPLICANT
Mr P Jackson, solicitor
SOLICITORS
Pike Pike & FenwickRESPONDENT
Mr A Seton, solicitor
SOLICITORS
Marsdens Law Group
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
27 June 2005
10175 of 2005 Falson & Associates Pty Ltd v
Blue Mountains City CouncilJUDGMENT
1 This appeal relates to development application No. S05/0001 which is for the subdivision of the property known as 58 Backhouse Street, Wentworth Falls, into two lots. The site has an area of about 2,025 sq m with a depth of about 80 m and a frontage of 25 m to Backhouse Street.
2 Proposed Lot 21 is to have a frontage of about 21 m to Backhouse Street and an area of 923 sq m. Proposed Lot 22 is to be hatchet-shaped with a total area of about 1,100 sq m including a 4.5 m wide access way with an area of about 200 sq m.
3 The existing detached house and garage on the land is to be retained on proposed Lot 21. An existing metal shed and carport is to be retained at the rear of proposed Lot 22.
4 The site is fairly level, having a gentle slope from the rear towards Backhouse Street. A stand of pine trees along the western boundary of proposed Lot 22 is to be retained. Apart from another moderately large pine tree in the midst of the site there is little other vegetation of significance on it.
5 The locality predominantly comprises detached dwelling houses in garden settings. Central Park is located a short distance away to the north-east.
6 The site is zoned Residential 2(A1) under Blue Mountains Local Environmental Plan No. 4 and in this zone the subdivision is permissible with consent.
7 The relevant subdivision development standards in cl 33 require that allotments have a minimum area of 700 sq m. Hatchet-shaped lots are required to have a minimum area of 1,100 sq m excluding the area of the access corridor. Because the proposed hatchet-shaped lot does not meet this area requirement, the applicant has provided an objection under State Environmental Planning Policy No. 1 Development Standards. In addition the applicant tendered, without objection, an alternate plan of subdivision with Lot 22 having a total area of 1,300 sq m and proposed Lot 21 having an area of 723 sq m. Both lots complying with cl 33.
8 In my view, a subdivision design that complies with the cl 33 requirements is to be preferred especially as it is clear that this can be achieved without any unreasonable consequences for the development itself. Moreover a larger hatchet-shaped lot will, as the experts agreed, provided greater flexibility for the provision of a dwelling house in a landscaped setting including necessary vehicle manoeuvring areas. Whilst the design shown in Exhibit B appears to provide a sufficient rear yard area for the existing house, a different design that would increase the rear yard area for proposed Lot 21 and still comply with the development standards in cl 33 is to be preferred.
9 I therefore propose to deal with the application on the basis of the design shown in Exhibit B subject to proposed Lot 22 complying with the area requirement of cl 33 but not exceeding it. In other words proposed Lot 22 should have an area of 1,100 sq m excluding the access way. Such a revised design would increase the depth of proposed Lot 21 by about 2 m providing better amenity for the existing residents.
10 Draft Blue Mountains Local Environmental Plan 2005 (”the draft LEP”) is also applicable to the site. It was advertised in late 2002 and is presently with the Department of Infrastructure, Planning and Natural Resources for finalisation. That department has indicated that all remaining issues associated with the draft LEP have been addressed and resolved. I understand that there are now no impediments that would prevent the Department from preparing the necessary report under s 69 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) to enable the draft LEP to be submitted to the Minister for making.
11 In the circumstances I am satisfied that the draft LEP attracts a high degree of certainty. However it is unclear as to how long it might take before the plan is made by the Minister and subsequently gazetted so I would apply a somewhat lesser degree of imminence.
12 Clause 6(4) of the draft LEP comprises a savings and transitional provisions clause which would have had the effect of requiring that if the draft LEP had been gazetted, this application would need to be determined, taking it into account as if it had been exhibited but had not been made. Together these matters lead me to the conclusion that the draft LEP needs to be taken into consideration as one of the relevant factors under s 79C of the EPA Act.
13 I also conclude that the provisions of the draft LEP, whilst being matters for consideration, such provisions are not strictly determinative of this application which must be considered on its merits including the provisions of LEP 4.
14 Relevant to this application the draft LEP contains in cl 90, the applicable development standards for subdivision. Being in the Living Conservation Zone, a minimum lot size of 1,200 sq m and a minimum 22 m lot width applies to both conventional and hatchet-shaped lots. There is also a minimum access way width of 4.5 m. The two alternate designs in Exhibits A and B, each exhibit significant non-compliances with these proposed development standards.
15 The draft LEP relevantly contains in cl 9 a requirement that before the granting of development consent, the consent authority is to be satisfied that the proposed development is consistent with the aims, objectives and principles of the plan. Relevant to the subdivision standards the objectives of the plan for the Living Conservation Zone are contained in cl 23 of the draft LEP and I shall refer to these later.
16 The application was advertised and one objection was received from a neighbour expressing concerns in relation to stormwater drainage. Those concerns were elaborated when I visited the site. The respondent had no such concerns and I accept that the subdivision and the subsequent development of proposed Lot 22 for residential purposes is capable of being undertaken in accordance with council’s stormwater drainage requirements.
17 The central issue in the case involves the non-compliance with the development standards in the draft LEP and the objectives for the Living Conservation Zone and whether the proposal would have an adverse impact on the character of the locality.
18 The locality in which the site is situated has been identified as having a traditional garden setting by the council in its study which was prepared in association with the draft LEP. This setting derives from formalised gardens and exotic plantings that contribute to the streetscape and the character of the area. According to Mr B Tully, council’s town planning expert, the landscape attributes of the site and the locality generally, include the backdrop provided by mature trees and the Central Park Reserve to the north-east. Mr Tully argued for the application of the development standards contained in the draft LEP particularly the 1,200 sq m minimum lot size and that the application of this standard would meet the substantive purpose of conserving the character of the locality. The proposed lots would be substantially inconsistent with the prevailing pattern of development in the locality and would not, he argued, meet the principal intention of the draft LEP. Mr Tully was of the opinion that the proposal and subsequent development of the land for dwelling houses would compromise the surrounding streetscape and site amenity. He was concerned that the present garden character of the area would be disturbed, including the visual links to Central Park. The adverse impacts would result from not only the provision of an additional house that would be able to be seen from Backhouse Street and Orchard Street but also the fact of an additional hard-surfaced driveway servicing proposed Lot 22. There is a hatchet-shaped lot adjacent to the site and the agglomeration of driveways would be out of character. More generally he was concerned at the likely resulting impact from an additional dwelling and the increased density of built form.
19 In reply, Mr Falson the applicant’s town planning consultant, recognised that the site is within an area identified as having a garden setting but argued that the site does not have any specific garden setting attributes, having a largely open grassed area around the existing buildings. Any garden that exists on the site does not have any of the stylistic features with the garden on the adjoining site, that is more of the style of garden described in the residential character study. With appropriate landscaping however, the proposed development would be responsive to the garden setting attributes of the area, much more so than presently exists, acknowledging that landscaping can be provided as part of the subdivision application. Further landscaping may be required as part of the application for a dwelling house. He did not accept that the proposed new lot would have any particular association with Central Park, being located approximately 120 m from the south-western corner of that park.
20 Mr Falson also argued that the proposed subdivision should be assessed in the context of the eclectic lot pattern in the locality. This includes many lots smaller than those proposed, this being apparent when a subdivision plan of the locality is taken into account. He agreed that existing lot sizes should not be the sole determinant of whether what is proposed is acceptable but the fact that the proposal is consistent with other lot sizes in the locality was an indicator of its acceptability together with the fact that only one additional dwelling house is proposed. He did not accept that an appropriate, sensitively designed dwelling house could not be provided for the proposed Lot 22, noting that there are many small lots in the locality with dwelling houses on them that make an appropriate contribution to the character of this locality.
21 The two town planners prepared a joint report but surprisingly this report revealed few areas of agreement, mainly elaborating on their areas of disagreement.
22 Objective A for the Living Conservation Zone in cl 23 provides that:
“To retain and enhance the character of residential areas that are formed by larger allotments and single dwelling houses within a prominent traditional garden setting”.
23 This objective is informed by the council’s Environmental Management Plan 2002 - Residential Development Strategy. It explains the term “garden setting” referring to areas where large lots predominate the subdivision pattern and for the planting of trees in backyards that can contribute to a landscape setting. Such settings are threatened by higher densities. Garden settings are distinguished from bushland areas in that there is a predominance of exotic species within gardens and verges. Large lot sizes and low site coverage are important characteristics. The study also refers particularly to the Living Conservation Zone which is aimed at protecting areas containing significant residential character, one of which is the garden setting as applies to this site. They can be vulnerable to inappropriate infill development.
24 Making particular reference to the minimum lot size of 1,200 sq m, the study recognises that larger lot sizes can allow for the establishment of gardens and the retention of mature vegetation which contributes to the canopy cover. It also notes that a maximum twenty five per cent site coverage is applicable.
25 The cadastral plan showing the subdivision pattern in the area surrounding the site including the block bounded by Backhouse Street, Langford Road, Fletcher Street and Pritchard Street reveals few hatchet-shaped lots. Despite this, the lot adjoining to the east has been recently subdivided into a hatchet-shaped lot and the lot between this lot and the adjoining Central Lane is also effectively a hatchet-shaped lot. The lot further to the east again, beyond Central Lane is also a hatchet-shaped lot. In this context I accept that the proposal would not be uncharacteristic in this part of Backhouse Street.
26 Any observation of the cadastral plan for this locality reveals that in terms of lot sizes, the proposal would not be out of character despite the hatchet-shaped configuration not being a predominant subdivision form beyond Backhouse Street. Recognising also that there would be few opportunities in the locality to closely replicate this subdivision form and taking into account the compliance with the subdivision requirements in the LEP, I do not accept that the non-compliance with the subdivision standards in the draft LEP should be determinative of the application.
27 It is clear to me that the existing subdivision pattern is a strong indicator of the character of the area together with the detached houses and garden settings. The proposal, taking into account the construction of an additional dwelling house on proposed Lot 22, will not affect this character in such a way as to justify rejection of the application. Clearly an additional driveway in Backhouse Street will be a negative element, however subdivision will provide an opportunity for the provision of appropriate associated fencing and more importantly, landscaping, not only of the proposed Lot 22 but also for the existing house fronting Backhouse Street. This will be of benefit to the streetscape.
28 The eventual additional house on proposed Lot 22 will be able to be seen from Backhouse and Pritchard Streets but only from limited viewing positions and in an appropriate landscaped setting such views will be within the context of the existing character of this area and be entirely appropriate. The additional house will not be able to be seen from Central Park.
29 Whilst I accept that the desired future character of this area is to comprise houses in garden settings on larger lots, an examination of the existing cadastral pattern will reveal the difficulty of achieving larger lots. Moreover, the existing character of houses in garden settings already exists and I am sure can be maintained into the future. I am satisfied that approval of this development will do little to change this.
30 Of course I expect that the applicable twenty five per cent maximum site coverage for a future dwelling and any setback requirements will be met. Compliance with these requirements will facilitate the provision of an appropriate landscape setting that will contribute to the garden setting character of the locality.
31 In the circumstances and giving weight to the fact of the compliance with the subdivision standards in the LEP, I am satisfied that the objective in cl 23A will be sufficiently met by the proposal. Similarly objectives C and D that seek to retain or restore the prominence of landscaped elements and traditional garden settings can also, in principle, be met by this proposal.
32 Finally with part of the site being included in a bushfire buffer zone, the advice of the New South Wales Rural Fire Service was sought. In response, the Service advised that certain access criteria should be met. As I understand it, these requirements would result in the widening of the proposed access way. Bearing in mind that the proposed Lot 22 is not affected by the bushfire buffer zone other than a part of the access way close to the street frontage and recognising that a fire truck would have access and egress to the site of a proposed new house via the access way as proposed, I do not accept that any widening is necessary.
33 I have therefore decided that the appeal should be upheld and development consent granted subject to the conditions in Exhibit 9. They cannot refer to Exhibit B, given what I have said about an appropriate subdivision design and so what I will do is invite the applicant to prepare an amended plan of subdivision that meets the specification that I indicated earlier in the judgment, being the provision of an adjusted Lot 22 that has an area of 1,100 sq m excluding the access corridor. The resulting Lot 21 will have a depth somewhere between 35 and 44.7 m.
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- T A Bly
- Commissioner of the Court
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