Farkas v Woollahra Municipal Council

[2004] NSWLEC 738

Land and Environment Court

of New South Wales

CITATION:	Farkas v Woollahra Municipal Council [2004] NSWLEC 738
PARTIES:	APPLICANT Simon Farkas and Veronica Ann Farkas RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	11100 of 2004
CORAM:	Brown C
KEY ISSUES:	Development Application :- subdivision into two lots whether dwelling can be reasonably constructed on new lot drainage
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 1995
CASES CITED:	Parrot v Kiama Council [2004] NSWLEC 77; Billgates Pty Limited v Woollahra Municipal Council [2004] NSWLEC 436
DATES OF HEARING:	13/12/04
EX TEMPORE JUDGMENT DATE :	12/13/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr N Hemmings QC SOLICITORS Reid and Vesely RESPONDENT Mr J Bingham, solicitor SOLICITORS Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

13 December 2004

11100 of 2004 S & V Farkas v Woollahra Municipal Council

JUDGMENT

1 This is an appeal against the refusal by Woollahra Council (the council) of DA 479/2004 for the subdivision of the land at 92 Drumalbyn Road, Bellevue Hill (the site) into two lots.

2 It is proposed to subdivide the site into two lots, being lots 151 and 152 (Attachment 1). Lot 151 has an area of 1,324 sq m and contains the existing dwelling house. Access to the dwelling house is to be obtained over a 3 m wide right-of-way over the western section of lot 152. Lot 152 has a frontage to Drumalbyn Road and would occupy the area currently used as a tennis court. It has an area of 729 sq m. The application contains a concept design for a dwelling that could be erected on lot 152 (Attachment 2).

3 The issues in the appeal relate principally to

(1) whether a dwelling can be adequately erected on lot 152, particularly without adversely impacting on the amenity of adjoining residential properties, and
(2) whether the proposal adequately addresses the disposal of stormwater.

4 The parties agreed to the appointment of Mr Garry Shields as the Court appointed town planning expert. In his evidence, he states that the proposed subdivision satisfies the minimum lot size requirement of 675 sq m for the Residential 2(a) zone within Woollahra Local Environmental Plan 1995 (the LEP).

5 Mr Shields further states that while the concept design for the dwelling on lot 152 does not form part of the subject application, he does not support this design as it raises a number of issues in itself. He recommends that design guidelines should be included in the approval of the subdivision to ensure that any future dwelling adopts good neighbourhood principles. He further states that the issues of drainage and structural stability need to be further addressed by the parties. On this basis, he commends the subdivision application to the Court for a favourable determination, subject to conditions that address his concerns.

6 Notwithstanding Mr Shields’ response, the council maintained its opposition to the subdivision. The principle position put by the council was that the area of proposed lot 152 was not capable of accommodating a dwelling house because of the limitations placed on the lot by the easement for support for Drumalbyn Road and also the right-of-way required to give vehicular access to the existing dwelling on lot 152. It was argued that a dwelling on this lot would create unacceptable overlooking and privacy impacts to the properties located to the east, in Bundarra Road.

7 In assessing this matter the Court had the benefit of a site view and also the opportunity to view the proposed subdivision from the adjoining two properties in Bundarra Road. Based on observations from these locations, I agree with the conclusions of Mr Shields. While the hypothetical dwelling is insensitive in its relationship with some areas of the adjoining property, I am not prepared to judge the subdivision of the land on the basis of this design. In my view, the design is sufficient to suggest that a more appropriate design could be prepared that would minimise any overlooking impacts and, if necessary through screen planting or other ameliorative devices.

8 I am also untroubled by the location of the easement for support and the right-of-way and their potential to limit a dwelling on lot 152. These restrictions are located largely within the expected setback to Drumalbyn Road. A large amount of the existing vegetation in this area will be retained and a dwelling on lot 152 will not impact on the streetscape in this area.

9 The setback to the eastern boundary of lot 152 was the subject of discussion on whether it should be classified as the rear boundary. If so classified, a setback of some 6.2 m (or as the DCP requires, 25% of the lot depth) would be required. Mr Shields states that there should be an increased setback of 1 m or 2 m to that shown on the hypothetical dwelling but it would be inappropriate to require a setback of 6.2 m. I concur with this conclusion.

10 The council also argued that the subdivision would create an inappropriate setback for lot 151 as the existing dwelling will not satisfy the requirements of council’s Residential Development Control Plan. Mr Shields states that the Residential Development Control Plan does not readily cater for allotments with two frontages and he acknowledges that the setback to the existing dwelling is acceptable because of the visually difficult task of identifying the rear part of the dwelling. In this case, this area is below street level and well screened from Drumalbyn Road and for these reasons, I agree that the setback is acceptable.

11 The secondary argument put by the council was that even if the subdivision was considered by the Court to be acceptable, it was not appropriate that the approval should be granted without a specific dwelling design. The Court was taken to the planning principles in Parrot v Kiama Council [2004] NSWLEC 77 where the Senior Commissioner declined to grant subdivision approval without a specific dwelling design for a proposed lot. In my view, the characteristics in Parrot can be clearly distinguished from the characteristics in this case. In Parrot, the site was very steep and the proposed development was a battleaxe subdivision with a number of surrounding properties. Importantly, the applicant declined to be bound by the envelope of the hypothetical building submitted with the application.

12 In this case, and despite the submissions to the contrary, I am not convinced that the land is so environmentally sensitive that an assessment of the likely impacts of a dwelling could not be undertaken as part of the subdivision application. While the design of a dwelling will be required to address any potential overlooking of the adjoining properties, I have little doubt that it can be undertaken by any reasonably competent architect. Importantly, any design will also be subject to the normal advertising procedures and the invitation of submissions from adjoining and nearby residents. In my view, there was nothing raised to suggest that the subdivision (or a future dwelling subject to a proper assessment of the site constraints) would be inconsistent with LEP and zone objectives, as required by cl 5 of the LEP.

13 There was general agreement on the issue of drainage. The decision of Bignold J in Billgates Pty Limited v Woollahra Municipal Council [2004] NSWLEC 436 restricts the use of conditions or deferred commencement conditions to address the requirement in cl 25(2) of the LEP, relating to the disposal of stormwater. It was agreed that if the Court found that the subdivision was acceptable on its merits, then the issue of drainage would need to be addressed independently through separate proceedings pursuant to s 40 of the Land and Environment Court Ac 1979. Based on my previous comments there is no reason, beyond the need to satisfy the requirements in cl 25(2) of the LEP, that development consent should not be granted.

14 Mr Shields raised additional matters relating to a restriction to the height of any proposed dwelling and the geotechnical stability of the site. I did not understand that these were matters strongly opposed by the applicant. In any event, further submissions could be put to the Court after the separate proceedings under s 40, if necessary, if there was some dispute over the planning conditions.

15 As further discussions may be required on the planning issues, the exhibits will be retained by the Court.

16 Findings on Facts:

An assessment of the merits indicates no reason, beyond the need to satisfy cl 25(2) of Woollahra Local Environmental Plan 1995 , why development consent should not be granted to DA 479/2004 for the subdivision of 92 Drumalbyn Road, Bellevue Hill into 2 lots.

G T Brown
Commissioner of the Court
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