Guden v The Council of the City of Sydney
[2010] NSWLEC 1250
•14 September 2010
Land and Environment Court
of New South Wales
CITATION: Guden v The Council of the City of Sydney [2010] NSWLEC 1250 PARTIES: APPLICANT
RESPONDENT
Durmus Guden
The Council of the City of SydneyFILE NUMBER(S): 10418 of 2010 CORAM: Hussey C KEY ISSUES: SUBDIVISION :- Subdivisionof existing dual occupancy development; inconsistent with area and subdivision pattern; precedent; Building Code of Australia. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1998
South Sydney Develolpment Control Plan 1997 – Urban DesignCASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Brotherton v Sydney City Council [2004] NSWLEC 475DATES OF HEARING: 6 September 2010
DATE OF JUDGMENT:
14 September 2010LEGAL REPRESENTATIVES: APPLICANT
Mr J Doyle (barrister)RESPONDENT
Ms M Carpenter (barrister)
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
14 September 2010
JUDGMENT10418 of 2010 Durmus Guden v Sydney City Council
Background.
1 This appeal was lodged against council’s refusal of a 2-lot subdivision of an existing dual occupancy development at 35 Rosebery Avenue, Rosebery. Development consent for the dual occupancy was granted in January 1997 on the basis of the retention of the existing front dwelling and erection of the new dwelling at the rear with a battleaxe lot type configuration.
2 The proposed subdivision comprises:
- Lot 12; the frontage lot containing the original dwelling and this lot is to have an area of 245 sq m.
Lot 11; the rear battleaxe lot containing the new dwelling and having an area of 448.5 sq m and access via a 2.34 m right-of-way (ROW) along the southern boundary of the lot (Refer Attachment AA).
3 A number of issues were identified and are summarised as follows:
- Suitability of battleaxe lot shape and area.
- Dual occupancy subdivision not encouraged.
- Fire safety.
- Public interest
The site
4 This site has a 15.24 m frontage to Rosebery Avenue and a total area of 598.7 sq m. It is located approximately 50 m south of Morley Avenue.
5 The original main dwelling at the front of the property includes a former retail shop built with zero street setback. There is no dedicated on-site car parking for this lot.
6 The dominant forms of surrounding development are single-storey dwellings on larger lots with areas exceeding 450 sq m. Most have side access leading to larger garage/ recreational structures in the rear yard.
7 The neighbouring property to the north (No 33 Rosebery Ave) comprises two Torrens title allotments each containing a single-storey dwelling. The rear lot has an area of 304.8 sq m and is accessed via a 2.5m ROW along the southern boundary. The front allotment has an area of 390.4 sq m.
Planning controls
8 The primary control is the South Sydney LEP 1998, under the site is zoned 2(a) Residential (Low Density). Clause 8 of the LEP relates to the consideration of council’s strategy and cl 10 requires any development to be consistent with the zone objectives in cl 11. They comprise:
- a) to preserve the amenity of existing low density areas, and
b) to nominate those localities which are primar i ly low density res i dential and where future residential development of comparable density is l ikely to occu r, and
c) t o ensure that building form , (including alterations and additions) i s in character with t he surrounding built environment and does not detract from the amenity e n joyed by nearby residents o r the ex i st i ng quality of the environment , and
d) to provide opportunities for non-residential developm e nt wh i ch prov i des services or employment for residents , and is of a type and scale that i s compatible w i th existing or planned r esidential development , and does no t detract from the amen i ty enjoyed by nearby resident s o r the existing q uality of the environment.
9 Clause 29 of the LEP deals with the subdivision of land and relevantly provides:
- (1) A person must not subdivide land to which this plan applies without the consent of the Council, unless the subdivision is exempt development referred to in Clause 10A.
10 The proposed subdivision is not exempt development and is therefore permissible with consent. The LEP does not contain any other development standards or provisions relating to the subdivision of land.
11 Clause 44 of the LEP deals with the suspension of covenants, agreements and various instruments.
12 Other controls are contained in the South Sydney DCP 1997 – Urban Design. The subject site is located within the Special Precinct 1 Rosebery. Clause 1.5 relates to dual occupancies and provides:
- Objective:
To permit the erection of a second dwelling on suitably sized allotments while respecting the overall character of the Rosebery estate.
- Dual occupancy developments comply with State and Council's policies for dual occupancy development. Consideration is given to the impact of the development on the character of the whole of the Rosebery Estate.
Free-standing dwellings are not permitted at the rear of the existing dwelling where the new dwelling faces a reserve.
An attached dual occupancy is acceptable where the design is sympathetic to the character of the Rosebery Precinct and no dividing fence is proposed across the lot.
13 The DCP does not contain any provisions restricting the subdivision of approved dual occupancy development in the Rosebery Precinct or elsewhere. The restriction on dividing fencing does not apply to freestanding (detached) dual occupancy dwellings.
14 Part E of the DCP relates to environmental design criteria and Clause 1.2 Site Layout contains performance criteria including, in part, the following:
- Includes lot sizes, shape and orientation that;
- reflect the intended land use, density and intensity of adjacent development,
- avoid the creation of battleaxe lots and long and narrow blocks at right angles to street frontages, where allotments have irregular shapes, such as battleaxe lots, development is restricted to the principal area of the lot that has adequate dimensions for the siting of buildings,
- make adequate provision for parking, vehicular access, service facilities and usable outdoor space,
- protect environmental features and recognize site constraints and opportunities, and
- enable microclimate management and energy conservation.
- The site layout;
15 Part F of the DCP relates to design criteria for specific types. For Site Layout Clause 1.1.1 contains the following provisions;
- Usable outdoor open space,
- Activities for relaxation, recreation, dining and children's play,
- Convenient vehicle access and parking, and
- Functional indoor space requirements.
- Residential allotment sizes in South Sydney are generally small, reflecting the predominant terrace house environment and historical subdivision patterns in the City.
In response to the diversity of household sizes and open space needs, Council's policy is to permit a variety of lot sizes as long as the allotment size and shape relate to the existing street patterns, the context of the site, and are adequate in size to provide open space, parking and landscaping.
Performance Criteria:Objective:
To ensure the size of new allotments caters for a variety of dwelling and household types and permits adequate solar access, landscaping, open space and car-parking
Lots are an appropriate size and have dimensions to enable the siting and construction of a dwelling and ancillary outbuildings to provide;
The location of private open space and its orientation takes into account the need for solar access and protection of natural features on the site.
16 The controls for site layout include:
- The minimum site area for single dwelling development as set out by the Local Government (Approvals) Regulations, 1993 is 230 sq m .
Site coverage for single dwelling houses, including terrace houses, is limited to 2 / 3 of the total site area, with a minimum un-built upon portion of 45 sq m.
17 Clause 1.1.2 of Part F of the DCP relates to private and communal open space and contains the following performance criteria;
- Private open space has sufficient dimensions to enable recreation use and is capable of serving as an extension of the function of the dwelling for relaxation, dining, entertainment, recreation ete. Open space is to be designed to ensure a reasonable level of privacy for adjoining properties.
18 The controls for private and communal open space include:
- At ground level private open space for the dwelling has a minimum area of 45 sq m where the minimum dimensions is 4 m. One part of the open space is the principal area which shall not be less than 16 sq m with a minimum dimension of 4 m, it is not steeper than 1 in 20 (5 % gradient) and is directly accessible from the living room of the dwelling.
19 Clause 1.1.3 of Part F of the DCP relates to parking, access and servicing. A requirement of 1 car-parking space per dwelling is specified.
The evidence
20 Limited expert evidence was presented by Ms K Pont (council’s planner) and Mr L Winnacott (applicant’s consulting planner). A number of written and oral objections were lodged and have been considered.
21 The case for the council relies significantly on the historical establishment of the Rosebery Estate that was created around 1914. This estate was influenced by the “Garden City Movement” and relatively large lots with areas in the range of 480 sq m to 700 sq m established. A covenant, which restricted development to single residences, double fronted brick cottages with tile/slate roofs was placed on the lots to guide future development.
22 Consequently, the submissions for council are that the approval of the subdivision would diminish the established character and amenity of this neighbourhood by the creation of the smaller allotments. Also, the approval of such subdivision would likely lead to other similar subdivisions, further reducing the amenity of the area. The objectors expressed this concern about the retention of existing amenity and precedence.
23 However the applicant argues against this because the dual occupancy development was approved by council in January 1997 and subsequently constructed. As the LEP does not contain any restrictions on subdivision of dual occupancy or residential density standards, then the subdivision should be permitted.
24 Furthermore, as the proposed development does not propose any alteration to the built form of the dual occupancy, other than the marginal relocation of internal fences, it will be consistent with the neighbouring property to the north, which comprises a similar battleaxe type subdivision.
25 In addition to this, the applicant submits that the following items satisfy the DCP requirements so as to merit consent:
- The lots in the proposed subdivision respond to Council's policy, as referred to in Clause 1.1.1 of Part F of the DCP to permit a variety of lot sizes as long as the allotment size and shape relate to existing street patterns, the context of the site, and are adequate in size to provide open space, parking and landscaping.
- The allotment sizes exceed the DCP minimum of 230 sq m and respond to the context of the site which comprises an existing detached dual occupancy development.
- Each lot will have an area of open space satisfying the minimum DCP requirement of 45 sq m area and 4 m minimum dimension.
- The site coverage of each dwelling does not exceed 2/3 of total site area.
- Un-built upon area is available for landscaping.
- Parking and access will be unchanged from that approved with a dual occupancy development.
Conclusions
26 Having considered the evidence, the submissions and undertaken a view, I consider this application merits consent.
27 The existing dual occupancy development is of a form that was permissible under SREP 12 – Dual Occupancy. Accordingly it was approved and the new dwelling erected. There are no conditions regarding subdivision of the development, except for Condition 7 of the Building Approval, which refers to:
- 7 That the use of the premises shall be as two dwellings each in single occupation only .
28 In support of its position, council submits that Rosebery was included as a ‘special precinct’ under the DCP due mainly to the existing large allotments with large rear yards that have remained substantially intact. However in 2006 INHERITage consultants assessed the heritage significance of the area and concluded that the estate was not sufficiently intact to justify it becoming a heritage conservation area.
29 Then in 2007 the Rosebery Heritage Review was commissioned to further consider possible heritage listing. Subsequently in May 2008 the Planning Policy Sub-Committee reviewed heritage study concluded that the City Plan will included planning controls to “maintain the Rosebery Estate as an area characterised by single-storey detached dwellings and the existing pattern of lots”.
30 Since that time however, this conclusion has not found its way into any planning controls. It therefore appears to me that on the basis of the current controls where there are no specific subdivision restrictions and dual occupancies are allowed, except where the new rear dwelling faces a reserve, it is then a reasonable expectation by a property owner that an appropriate subdivision could be approved. With respect to the battle-axe lot shape, these are only to be avoided in certain circumstances, which would not be given any determining weight in this case.
31 From the evidence it seems to me that there are particular circumstances that support this application. Firstly, the dual occupancy has been constructed and there will be no material change or impact on the immediate neighbourhood, subject to compliance with all the conditions of consent, particularly the provision of a new footpath crossing and on-site parking space on the northern side of the original building.
32 Reference to the neighbourhood subdivision plan, particularly in the vicinity of the subject site shows that there is a grouping of smaller lots adjoining, which are distinguishable from the remainder of the estate. Accordingly, I am satisfied the proposal will maintain a reasonable degree of consistency with the neighbours and not impose any material impacts on neighbouring properties, so as to comply with the controls in cl 1.5 of the DCP.
33 With regard to the BCA issue, I understand this can be satisfactorily addressed by the imposition of a condition that adjusts the southern boundary so as to provide the minimum separation to the existing windows. The applicant agrees to this.
34 Insofar as the council and objectors raised concerns about precedential effects, it appears to me that the subject site is readily distinguished from the remainder of the estate because of the location of the original dwelling/shop on the road frontage lot. This has zero street set back and is located so as to enable separate side access on the northern side and a greater separation between the 2 buildings. This also leaves the southern access way for the newer rear lot.
35 My observations at the view did not discern any other dwellings that could allow such separate access ways or achieve similar dwelling separation. Therefore similar opportunities for subdivision would appear to be extremely rare.
36 In any case, I note that the controls in SREP No 12 allowed dual occupancies over the past 15 years but the take up has apparently been minimal. Likewise, the current controls still allow dual occupancies, without any specific controls to prohibit subdivisions. Therefore, I do not consider that the following ‘precent’ circumstances mentioned by Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 apply:
- 29. In the present case the Senior Commissioner noted (at par [42]) that the notion of precedent is treated with considerable caution by the Court. He also found as a fact that one approval would tend to lead inexorably to a further three over time. He also noted the existence of 25 lots that could be seen as benefiting from what seems likely to be an inevitable consequence of approvals in this location. Importantly, the Senior Commissioner found (at par [44]) that the present proposals had an undesirable visual impact. In other words, the present proposals satisfied the criteria identified by Sugerman J which give rise to a valid consideration of precedent: the present proposals were not “unobjectionable” in themselves and there was a sufficient probability for further applications of undistinguishable developments of the same class and in the same locality.
37 With reference to the decision of Murrell C in Brotherton v Sydney City Council [2004] NSWLEC 475, I am satisfied that the location of that land is significantly different to the subject land that there is no reasonable precedential effect.
38 In summary then, there were no controls presented to the Court, which prevent this subdivision of the existing dual occupancy. I do not consider there was any compelling evidence presented that indicated that the approval of this 2-lot subdivision would cause adverse amenity impacts or act as a precent for other similar developments. Furthermore, there are no substantive controls in place such as designated ‘conservation areas’ to preserve the existing subdivision pattern. If the prohibition of subdivisions is appropriate for this area, then the planning controls can be amended to incorporate such controls, if they are in the public interest.
39 The Court orders:
- 1 The appeal is upheld.
2 Development consent is granted to DA: D/2010/23 for the 2- lot Torrens title subdivision of the existing dual occupancy development at 35 Rosebery Avenue, Rosebery subject to the conditions in Annexure A.
________________________
R Hussey
Commissioner of the Court
rh/ajl
Annexure ‘A’
Conditions of Consent
35 Roseberry Ave, Roseberry.
1) SUBDIVISION CERTIFICATE
A separate application is to be made to Council to obtain approval of the final Plan of Subdivision and endorsement of the Subdivision Certificate in accordance with Section 109J of the Environmental Planning and Assessment Act 1979.
2) SYDNEY WATER CERTIFICATE
Prior to the issue of the Subdivision Certificate under Section 109J of the Environmental Planning and Assessment Act 1979, written confirmation that you have obtained a (Subdivider) Compliance Certificate under Section 73 of the Sydney Water Act 1994 must be submitted to Council.
Note: Sydney Water may require the construction of works and/or payment of developer charges, details of which will be provided in the "Notice of Requirements" from Sydney Water. Please make early contact with the Co-ordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design. Application must be made through an authorised Water Servicing Co-ordinator. Please refer to Building Developing and Plumbing section on the web site then refer to "Water Servicing Co-ordinator" under "Developing Your land" or telephone 132 092.
3) EASEMENT FOR OVERHANG
A documentary Easement for Overhang is to be created over the part of Lot 11 occupied by the encroaching eave and gutter along the southern wall of the single storey building on Lot 12 in the subdivision, pursuant to Section 88B of the Conveyancing Act 1919, to the benefit of Lot 12, in terms consistent with Schedule 8 Part (10) of the Act and to Council's satisfaction.
4) RIGHT OF FOOTWAY
A documentary Right of Footway and an Easement for Maintenance and Repairs are to be created over the vehicle driveway within Lot 12, pursuant to Section 88B of the Conveyancing Act 1919, to the benefit of Lot 11, in terms granting appropriate rights of pedestrian access and rights of maintenance, repairs and upkeep of the dwelling occupying that lot, consistent with Schedule 8 Parts (2) and (5) of the Act and to Council's satisfaction.
5) WINDOWS OF DWELLING HOUSES - FIRE RESISTANCE
Prior to the issue of the Subdivision Certificate either:
a) The provisions of the Building Code of Australia (BCA) in relation to the proximity of external walls (with window openings) of a Class 1 building to a property boundary are to be satisfied with regard to the location of the common boundary between the lots in the subdivision and the southern wall of the existing dwelling occupying Lot 12.
b) Alternatively, the subdivision is to be amended by the relocation of the southern boundary of Lot 11 to provide a minimum separation of 900mm in compliance with the BCA and a documentary Right of Carriageway and Easement for Services and Drainage created over the component of the vehicle driveway within each lot in the subdivision, via Section 88B of the Conveyancing Act 1919, in appropriate terms granting reciprocal rights of vehicle and pedestrian access and use for domestic services/stormwater drainage and to Council's satisfaction.
Note: The alternative solution will eliminate the requirement for the creation of the Easement for Overhang, Right of Footway and Easement for Maintenance and Repairs.
6) EASEMENTS AND COVENANTS
Additional easements, rights of way or restrictive/positive covenants required to encumber the proposed lot(s) as a consequence of the subdivision for any shared services, drainage system, access, encroachment or the like are to be created pursuant to Section 88B of the Conveyancing Act 1919 and to Council's satisfaction.
7) COMPLIANCE WITH BUILDING CODE OF AUSTRALIA
Both Class 1 a dwellings must comply with the provisions Building Code of Australia (BCA) (Vol 2 Housing Provisions).
8) DRIVEWAY AND PARKING SPACE
The construction of a driveway and parking space on the northern side of the original residence (Lot 12) as shown on the approved dual occupancy building plans. Such works to be completed to council’s satisfaction prior to the issue of the Subdivision Certificate.
______________________
R Hussey
Commissioner of the Court
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