Fleming v Pittwater Council
[2007] NSWLEC 576
•30 August 2007
Land and Environment Court
of New South Wales
CITATION: Fleming v Pittwater Council [2007] NSWLEC 576 PARTIES: APPLICANT
RESPONDENT
Ross Fleming
Pittwater CouncilFILE NUMBER(S): 10379 of 2007 CORAM: Hoffman C KEY ISSUES: Development Application :- subdivision of 1 lot into 2 lots, character of the locality, lot size, stormwater discharge, access driveway, amenity and design, flora and fauna LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Pittwater Local Environment Plan (LEP)
Pittwater Development Control Plan No. 21DATES OF HEARING: 21/06/2007 and 30/08/2007 EX TEMPORE JUDGMENT DATE: 30 August 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr G. Green, solicitor
Instructed by L. Rankin
of Pike Pike and FenwickRESPONDENT
Ms D. Townsend, solicitor
of Mallesons Stephen Jaques
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
30 August 2007
JUDGMENT10379 of 2007 Ross Fleming v Pittwater Council
1 This a Class 1 appeal to a proposed subdivision of 1 lot into 2 lots at No. 28 Crescent Road, Mona Vale, identified as Lot X DP 419432. The hearing was held on site on 30 August 2007.
2 The subject site and surrounding properties are zoned Residential 2A and subject to the provisions of Pittwater Local Environment Plan (LEP) and Pittwater Development Control Plan No. 21 (DCP). The property is identified as being located within a foreshore scenic protection area, however the water could not be seen from the property due to impeding vegetation and the location of the property in the land form.
3 There have been issues originally between the parties in terms of the character of the locality and provisions of minimum lot size in the residential development control plan, stormwater discharge into the public domain, access driveway, amenity and design, flora and fauna habitat considerations. These have been resolved between the parties by virtue of a report to the council’s development unit posted 9 August 2007. There were however still disputes between the parties in regard to conditions of consent.
4 The hearing was attended by:
- Ms Puckeridge, solicitor for the respondent council;
- Ms K Burke, solicitor for the Respondent Council;
- Ms L Haidari, Town Planner for the council;
- Mr P Brisely, Senior Development Engineer.
5 Appearing as objectors to the proposal were:
- Mr A Purnell of 24 Crescent Road, Mona Vale;
- Ms T White of 22 Crescent Road, Mona Vale;
- Mr G White of 22 Crescent Road, Mona Vale;
- Mr P deKlerk of 38 Crescent Road, Mona Vale;
- Mr A Simon of 30 Crescent Road, Mona Vale.
6 Mr. Purnell and Mr Simon had houses either side of the battleaxe driveway existing to the subject property from Crescent Road. The driveway was quite long but very straight and from the footpath crossing at the road level there is clear vision all the way down the driveway to the existing garage and the proposed manoeuvring area for vehicles using those proposed allotments. Mr deKlerk was a neighbour on the northern side of the rear of the subject property and Mr and Mrs White were neighbours near the end of the driveway where it ended at the manoeuvring area on the southern side.
7 The primary concern of Mr Purnell and Mr Simon was the requirement by council of a passing bay in the driveway. It was located by request of council personnel to be approximately opposite Mr Simon’s bedroom windows and opposite Mr Purnell’s barbeque and outdoor recreation area and his living room, dining room, kitchen and office. All of these are fairly close to the boundary directly adjoining the proposed passing bay.
8 It seems that council had concern with the length of the driveway which led to the potential for two cars to meet requiring one to either reverse out into the street or back into the manoeuvring area. Thus came about the council requirement for a passing bay.
9 The applicant did not necessarily require the passing bay and the evidence of the neighbours was that in view of the adverse impact on them it should be deleted. There was clear vision in either direction and drivers would take appropriate action.
10 Mr Brisely and Ms Hadari were concerned that a driver just entering the drive, if perceiving another car, may be tempted to reverse out into Crescent Road which is a narrow street with double lines in the centre and no parking lane on either side. As a result, there is potential hazard in that manoeuvre.
11 In observing the driveway crossing it was noticed the footpath at this point is particularly wide in the vicinity of 12 m, and the driveway crossing is already about 4 m wide. The applicant had in the original application proposed widening the footpath crossing, however the council had not favoured it and sought the passing bay further down the driveway.
12 However, on observation it seemed that it was directly adjoining an unbuilt driveway to No 75 Rednal Street, Newport. The latter property having direct access by a driveway via Rednal Street and therefore not needing to construct this long battleaxe handle. Nevertheless, there is space that does not effect a neighbour due to the access handle parallel and immediately next to that serving 28 Crescent Road.
13 The existing concrete crossing could easily be widened to 5 1/2 m. Mr Brisely said that width is necessary for a passing bay without having to widen the kerb crossing itself. The 12 m width of the footpath reserve allowed widening of the driveway to 5 1/2 m for a length of 5 m and Mr Brisely said that would provide a passing bay. He was concerned about the gradient of the existing driveway.
14 The topography of the footpath is steeper on the northern side of the driveway than on the southern where the gradient is less. Fortunately the south is the side that adjoins the battleaxe handle attached to No 75 Rednal Street. It seems practical to make the passing bay in that location since if there was to be a car half way up the driveway, any driver entering would be able to make the observation and swing into the extra width of the footpath crossing. A car entering and half way down the drive would be seen by an exiting vehicle and it could wait at the other end of the driveway.
15 This appears to be the appropriate solution and it resolves the concerns of the neighbours in regard to noise impact.
16 In regard to the rest of the proposal the existing battleaxe lot is proposed to be subdivided into 2, approximately along the north-south line. It would retain the existing dwelling on proposed lot 1 and its swimming pool. The swimming pool pump and its en-closure would have to be relocated from proposed lot 2 onto lot 1. The existing garage would remain as part of proposed lot 2 and any future house on proposed lot 2 would be the subject of a separate application to council. It also proposed to create a 1 m wide drainage easement through the adjoining property at No 75 Rednal Street, Newport, in order to provide stormwater drainage down to the Council facilities in that street.
17 Access to proposed lot 1 would continue to be obtained from Crescent Road via the existing access handle. Access to proposed lot 2 would be via the same driveway having right of carriageway over it to the existing garage and a right of way for the manoeuvring area between the garage and the existing house. Two new parking spaces would be created adjoining the existing house for its occupants.
18 Following the original application and consideration of various matters amended plans had been prepared and renotified to the adjoining property owners and were in Exhibits B and C of this appeal.
19 Appearing for the applicant was Mr G Green, solicitor for the applicant; Ms E Ranken, solicitor for the applicant; Mr R Fleming, Town Planner for the applicant; Mr T Butt, property owner; and Mr S Spillane, property developer.
20 Some of the other issues that had been resolved between the parties were in regard to the character of the area and the provisions of the minimum lot size. The council Development Control Plan provided for 1200 sq m for subdivision, and this was done by a mapping which identified what was called “sensitive areas”. The subject land and that surrounding in and near the vicinity had been included in that locality.
21 The proposed lots would have site areas of: lot 1 being 1097 sq m excluding the access handle, and lot 2 being 808 sq m. The statutory minimum under the LEP is 700 sq m which is easily satisfied.
22 There had been investigations of the subject property via flora and fauna habitat analysis by council’s Natural Resources Officer and his analysis had led to the amended plans now before me. He had assessed the vegetation on the site and found that it was mainly exotic species imported to the area. He considered the enlarged dimensions of proposed lot 2 would enable loss of canopy cover to be minimised and there would be no loss in native canopy trees.
23 In regard to amenity and design, there was consideration that lot 2 along its west boundary had 3 neighbours, whose background privacy should be protected those being 75, 77 and 79 Rednal Street. And, along the western boundary of the subject property there are large trees that the council had hoped would be able to be retained in the future by any proposal for a dwelling on the new allotment. Parallel to this boundary and about 2 m in from it is a council sewer main. There is an inspection pit toward the southern end of proposed lot 2. The council sought to have a minimum setback at 2.5 m from this western boundary in order to give some protection to the existing trees, privacy to the neighbours and to minimise the potential of any new dwelling interfering with the sewer main.
24 The applicant opposed this condition and is seeking that it be only a condition of approval and not a requirement for notation on title.
25 Combined with considering these setbacks, Mr deKlerk who is a neighbour at the rear northern boundary of the existing property had also hoped for a similar setback in order to avoid any new building within 900 mm of that boundary. It seemed to me that being the northern boundary any proposed new dwelling would likely be set well back from Mr deKlerk in order to be oriented towards the northern sun. And if Mr deKlerk’s boundary became identified as the “rear boundary” it would require under council’s DCP a 6.5 m setback. The applicant did not resist the imposition of a condition on this northern boundary of the 2.5 m setback. This is incorporated as a condition.
26 However in the regard to the western boundary it seems to me there are important existing neighbour amenity and existing structures such as the sewer main that runs all the way along that side boundary. They should be protected from any future building. It is my opinion that the 2.5 m boundary setback on the western side should be imposed on the title so that any future owner will be well aware of the restriction.
27 Also, in looking at the plans as currently proposed it was noted that the manoeuvring area proposed by the applicant is very tight. In fact it does not provide for pedestrian access alongside the existing driveway into proposed lot 2. It means that any future owner would have to either demolish the existing garage or enter the garage and go out through a side door in order to get to any dwelling. Also the manoeuvring area near to this location needed construction as part of the subdivision works to provide access to the two new parking spaces for the existing house. The plans did not show this. As a result the manoeuvring area right of carriageway was enlarged by hand notation on the plans at the time of the hearing.
28 The parties prepared draft conditions. The applicant tendered its amendments to the council’s conditions previously agreed between the parties except for the one relating to the western boundary. It seems to me that given the amendments referred to in this judgment the appropriate components of Exhibit D should be incorporated into the draft conditions of Exhibit 1.
29 The objectors’ concerns in my opinion have been satisfactorily dealt with and therefore, there being no issues between the parties and the conditions having been determined I find no other reasons sufficient for refusal. Therefore, the Orders of the Court are:
1. The appeal is upheld;
2. Development consent is granted for subdivision into 2 lots of Lot X DP 419432, known as No 28 Crescent Road, Newport as shown on the hand annotated drawings No A1-9707P prepared by Byrne and Associates Pty Limited, Revision B dated the 4 July 2007, annotated on 30 August 2007 all as further amended and built in accordance with the Conditions in Annexure A hereto annexed.
3. The exhibits are returned to the parties except exhibits 1, A, B, C and D.
___________________
- K G Hoffman
Commissioner of the Court
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