Hodge v Kogarah Municipal Council - [2005] NSWLEC 767

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Hodge v Kogarah Municipal Council [2005] NSWLEC 767

PARTIES:
APPLICANT
Clair Hodge

RESPONDENT
Kogarah Municipal Council

CASE NUMBER: 11319 of 2004

CATCH WORDS: Development Application

LEGISLATION CITED:
Kogarah Local Environmental Plan 1998
Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment
Development Control Plan No. 3 - Foreshore Development Policy
Better Homes Design Guide - Residential Development Control Plan

CORAM: Hussey C

DATES OF HEARING: 03/08/2005 and 17/11/2005

EX TEMPORE DATE: 23/12/2005

LEGAL REPRESENTATIVES

APPLICANT
Ms J Jagot, barrister
SOLICITORS
Mallesons Stephen Jaques

RESPONDENT
Ms C Schofield, solicitor
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hussey C
23 December 2005
11319 of 2004 Clair Hodge v
Kogarah Municipal Council

JUDGMENT

Background

This appeal is against council' refusal of a development application for a 2 lot subdivision of No. 50 Algernon Street, Oatley.

The subject land is described as Lot 9A, in DP 4868. It is rectangular shape with a 20.1m frontage to Algernon Street and total area of 1859 sq m. This lot adjoins Lot 322, which is a smaller waterfront lot created below Mean High Water Mark of Georges River and it has an area of 351 sq m.

The proposal

The proposed subdivision involves the creation of:
Lot 1; a rectangular shape lot with 17 m street frontage and total area of 700 sq m. Along its proposed western boundary a 2.48 m right of carriageway (ROC) is proposed to provide access in conjunction with the adjoining battleaxe lot.
Lot 2; a battleaxe shaped lot with a total area of 1157 sq m. It is connected to the street by an access handle 2.32 m wide. Easements for access, maintenance and drainage are proposed along the northern and eastern boundaries of this lot.
The applicant proposes to consolidate Lot 322 with Lot 2.
The issues identified for the appeal concern:
·              Unsatisfactory site area and width of allotments;
§             Site suitability, in terms of its slope
§             Driveway and access
§             Impact on natural and built environment
§             Public interest

In order to efficiently deal with these issues, the parties agreed to Ms K Gordon being the Court-appointed expert (CAE) for planning and her reports are Exhibits C, E and F.

Planning framework

The primary control in this matter is the:
i)Kogarah Local Environmental Plan 1998 (KLEP 1998) under which the land is zoned mainly zoned Residential (a) – Residential (Low Density) and it is within the Waterfront Scenic Protection Area and is subject to a 30 m Foreshore Building Line (FSBL). The proposed subdivision is permissible with consent. The adjoining waterfront Lot 322, is zoned Environmental Protection Waterways.
The following clauses are relevant:
·              Clause 7 - Zoning Control Table Clause 8 - Tree Preservation
·              Clause 9 - Land Filling and Excavation Clause 12 - Subdivision
·              Clause 16 - Ecologically Sustainable Development
·              Clause 18 - Foreshore Building Line
·              Clause 19 - Waterfront Scenic Protection Area
ii)Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment
iii)10 – Subdivision Code
iv)Development Control Plan No. 3 – Foreshore Development Policy
v)Better Homes Design Guide - Residential Development Control Plan – of which the following is relevant.
·Part 3 - Locality Plan 14 Oatley - Streetscape & Landscape and Building Form
·Part 5 Clause 5.1 -Building Envelope - Controls that apply to sites within the waterfront scenic protection area.
·              Part 5 Clause 5.4 - Landscaping and Bushland Protection.

Evidence

From the evidence presented, council’s main concern is that the front Lot 1 is of insufficient width and shape to comply with the provisions of the DCP. This arises because its effective area is restricted by the 2.72 m (angular) wide ROC that is required in conjunction with the rear hatchet lot handle to provide sufficient width for the access handle of the proposed Lot 2.
Associated with this, council’s submission is that the front Lot 1 should be enlarged, by shifting its rear common boundary southward, so as to provide a satisfactory level of open space for the dwelling on the front Lot 1.
The concerns raised by the objectors generally related to the suitability of the new Lot 2 to provide an adequate building platform which respects the Foreshore Building Line (FSBL) and retains mature vegetation on the lot. Also potential loss of privacy from any new dwelling erected on the lot and the provision of satisfactory access.
When the proposal was initially assessed by Ms Gordon, she expressed concern about the proposed lots configuration ability to support dwellings consistent with the character of the area. These concerns related to adequacy of private open space for Lot 1, privacy to the access way along the western elevation of Lot 1 dwelling and screening and separation of the rear terrace of Lot 1. This partly involved resolution of uncertainty of the extent of the rear terraced area, whose approval was questioned.
Ms Gordon’s assessment was based on the DCP 10 provisions wherein the definition in s 1.5 refers to “the total area of the allotment excluding the area of the corridor in the case of hatchet shaped allotment” and also the width of an allotment is the square width of an allotment measured at any point on or behind the relevant street building line”.
From the DCP, a minimum area of 700 sq m is required, together with a minimum width of 18 m to which the proposed Lot 1 is non-compliant.
According to Ms Gordon’s assessment, the DCP allows for variation to controls where they result in allotments with a subdivision pattern reflecting that of the street. She considers the proposed subdivision is reflective of the street and complies with this objective, even though she initially expressed dissatisfaction with the configuration of Lot 1 because of its inability to provide adequate private open space.
However, following various discussions on-site, it seems reasonable to me to assume that in the circumstances of this case, the purpose of the subdivision is to allow reasonable dwellings on the residential zoned portion.
Accordingly one of the principal uncertainties is assessing a subdivision application is minimised because in this case a substantial dwelling on Lot 1 has recently been constructed. Therefore its impacts can be reasonably assessed, in the context of its proposed lot shape and neighbourhood impact.
Whilst Ms Gordon initially considered the provision of open space was deficient in terms of the RDCP’s 35% site coverage provisions and 50% impervious area controls, she reviewed this position following clarification of the building curtilage details and discussions at the view. Her preference was that the rear common building be shifted further southward, away from the new dwelling.
However, on subsequent review, Ms Gordon conceded that when the impact of the existing dwelling on Lot 1 was considered relative to the proposal boundaries then:

·The combination of the rear paved open space area, together with the turfed and fenced front courtyard area, which has a northern orientation provided sufficient private open space, with a high standard of amenity to satisfy the controls for private open space. This opinion included the relationship and utility of the garage adjacent to the courtyard area.
·The offer by the applicant to include screening along the western elevation terraced would provide adequate privacy to the rooms on this side of the dwelling, taking into account the excavated level of the driveway, which significantly reduces overlooking and loss of privacy. The provision of landscaping along the driveway also mitigates overlooking and loss of privacy.

With regard to the impervious area requirements, I understand that the application of this concern has restricted application in this case, because of the underlying and exposed rock base.
The other substantive concern raised was the shifting of the rear boundary southward so as to increase planting opportunities to provide some screening and differentiate between the building form between houses on Lots 1 and 2, as observed from the waterway. But she agreed that this screening would be required on the bench level below the terraced area of Lot 1 and it was not critical which lot that the trees were placed on because the screening effect could be achieved with maintenance of the vegetation on the lower-level Lot 2. Therefore the adjustment of the common boundary was not essential for the intervening screening.
In my assessment of this primary issue, I consider it appropriate to assess the impacts relative to the new, existing dwelling on the site. I accept Ms Gordon’s opinion that the site provides two high quality outdoor private open space areas; i.e. the large rear terrace with water views and the north facing courtyard. This, together with the screening of the driveway, provides a sufficient level of privacy for this existing dwelling, which is consistent with this established neighbourhood.
Insofar as Ms Schofield makes submission about the inadequate lot size, nevertheless reference to the various topographic and lot layout plans shows this proposal is consistent with the prevailing subdivision pattern.
The size of the neighbouring lots varies and the level of detailing on the plans tendered does not distinguish areas covered by right of ways (ROW) and right of carriageway (ROC) but noticeably some of the frontage lots are relatively small with areas in the order of 557 sq m.
In the ultimate, however, I am satisfied to rely on Ms Gordon’s evidence that the proposed 700 sq m Lot 1 is consistent with the character of this neighbourhood and its lot shape is not sufficient to warrant refusal.
I have carefully considered the option of shifting the common rear building southward. But this would result in the additional area for Lot 1 being at a lower bench level with difficult access to maintain the vegetation. Also it would restrict turning and access for a future dwelling on Lot 2.
Following the designation of the hatchet area on the plan which shows the area on the bench where Ms Gordon says it is desirable for the screening trees, I consider it reasonable to impose a condition requiring detailed investigations of this bench area to select suitable locations for the trees. Providing the conditions of consent are observed, which requires these trees to be maintained, I consider it reasonable and orderly development to allow those trees on the bench area, and to remain in Lot 2. This allows greater flexibility for access to Lot 2 and may enhance the longevity of the trees.
In addition to this, I note that the subdivision plan also includes a proposed Easement for Access and Maintenance along the north boundary of Lot 2 to allow the rear landscaping area to be maintained.
On this basis I am satisfied the provisions of DCP 10 and the RDCP are reasonably satisfied.
The next issue concerns the suitability of Lot 2 to enable a future dwelling house to be built thereon. This arises because part of the land above the FSBL has a steep slope in order of 1:2 and difficult access. Notwithstanding this, I note that the available area of Lot 2 is in order of 1150 sq m, which significantly greater than the 750 sq m with minimum.
However, for the appeal the applicant has identified a building footprint, which indicates that a carefully designed dwelling can be accommodated on Lot 2 within the building envelopes provided for in the DCP and also comply with the FSBL restrictions.
The associated design requirements deal with the minimization of adverse environmental impacts, including those to neighbouring properties wherein s 1.11 of DCP states:
(iii)Avoid disfigurement of the natural topography due to access construction and or consequent building construction on the allotments. Sites with a slope greater than 1:5 are likely to present difficulties in this regard and may not be capable of subdivision (see also "Landfilling" above)."
From the evidence I am satisfied to rely on Ms Gordon’s following opinion:
That whilst the building area of Lot 2 is steep, I am of the opinion that the slope is not so severe that a dwelling could not be designed to suit the site, as is evidenced by the other dwellings in the immediate vicinity of the site. An appropriate design for this site may be a "pole" house or a dwelling with split levels corresponding to the topography of the site. I am also of the opinion that construction impacts can be appropriately mitigated, however the methods to be employed to achieve this should appropriately be detailed in any application for a dwelling on proposed Lot 2.
The suitability of proposed Lot 2 under the provisions of s 1.2 Objective (a) have been addressed in relation to Issue 1 and it is my opinion that proposed Lot 2 satisfies this objective.
However, there is a further matter for consideration in s 1.2 Objective (d) of DCP to:
Seek to conserve sites containing visually significant trees, shrubs or landforms or buildings/places of heritage significance.
In this regard, I am satisfied to rely on the tree assessment by Mr Stubis, which indicates that reasonable conditions of consent can be imposed to protect trees, which allows a suitable dwelling to be erected on Lot 2.
The next issue deals with adequacy of the driveway and access. During the hearing details of the driveway were clarified and further cross sections provided.
On the basis that the combined width of the battleaxe handle and right-of-carriageway comfortably contains the constructed driveway, with perimeter boundary planting, I note Ms Gordon no longer raised any objection to the driveway.
Accordingly I consider the driveway details indicate the satisfactory access to Lot 2 can be provided, to a standard that is consistent with other neighbouring lots in this relatively steep topography and I do not consider there are reasonable grounds to reject the proposal because of unsatisfactory access.
With respect to the impact on Natural and Built Environment Issue, this is mainly relates to the impacts of works to enable a new dwelling to be constructed on Lot 2 and in terms of land filling (cl 9, LEP). It also deals with the tree removal in terms of FSBL provisions.
From the evidence I am satisfied to rely on Ms Gordon’s opinion that a dwelling could be designed on the site that would satisfy the controls and that would minimise cut and fill. Such a dwelling would necessarily need to be carefully designed and may be a "pole" house or a split level house stepping down the slope of the site.
Insofar as s 1.9 (iii) of DCP 5.14 deals the design of dwellings with regard to visual impact and impact on the landscape. The clause requires dwellings to be sited and designed to:
·              create minimum disturbance to the existing landscape;
·              be in scale with the slopes and width of the river valley;
·              have respect for the site contours,
·              minimise cut and fill;
·              avoid conspicuous elevated platforms on stilts, and
·be of appropriate colours and materials that blend in with the foreshore environment.
I also accept Ms Gordon’s opinion that as a suitable dwelling (in principle) can be erected on Lot 2, then the aforementioned detailed matters can be considered when a detailed development application for a dwelling is made.

Conclusion

Having carefully considered the evidence, submissions and undertaken a view, I am satisfied that the further details and amendments made by the applicant during the course of the appeal, results in this proposal meriting conditional consent.

In my assessment, the proposal is consistent with the subdivision pattern for this area where the rear part of the lots are steeply sloping and have been developed as battleaxe lots. This being the case, I am satisfied that the existing residents on Lot 1 will enjoy a reasonable amenity, notwithstanding its restricted use due to the right of carriageway, which is consistent with the existing neighbourhood.

Also I rely on Ms Gordon’s assessment that a suitable dwelling can be erected on Lot 2, and I accept her opinion that the conditions of consent should include the requirements for the planting and maintenance of 3 canopy type trees, to break up the building bulk of the dwellings in the future, as seen from the water and in FSBL, in order to satisfy the objectives of the FSBL controls. In my opinion, this can be achieved by planting the screening trees on the upper bench area of Lot 2.

With respect to the various objections, my assessment has been included within the foregoing merit issue determination and I do not consider they should be given sufficient warrant to refusal of the application, which is now supported by Ms Gordon and which was previously supported by council’s planning officer.

Court orders

1.The appeal is upheld.
2.Development consent is granted to DA 579/03 for a 2 Lot subdivision at 50 Algernon Street, Oatley, subject to the conditions in Annexure ‘A’.
3.The exhibits may be returned except for Exhibits A, B, C, E, F, H and 12.

___________________
R Hussey
Commissioner of the Court

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