Hunter v Sutherland Shire Council

[2008] NSWLEC 1115

Land and Environment Court

of New South Wales

CITATION:

Hunter v Sutherland Shire Council [2008] NSWLEC 1115

PARTIES:

APPLICANT
John Hunter

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10674 of 2007

CORAM:

Murrell C

KEY ISSUES:

Development Application :- subdivision of 1 lot into 2, landscaping, drainage, loss of trees, geotechnical, overlooking/privacy, topography, zoning, character and amenity of area, overshadowing, streetscape and impact when viewed from foreshore.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2000
Sutherland Shire Local Environmental Plan 2006
State Environmental Planning Policy No. 1

CASES CITED:

Uniting Church Australia Property Trust (NSW) v Sutherland Shire Council (2005) NSWLEC 289
Winten Property Group v North Sydney Council (2001) 130 LGERA 79
Wehbe v Pittwater Council (2007) NSWLEC 827
Memel Holdings Pty Limited v Pittwater Council (No 3) [2001] NSWLEC 240
Inghams Enterprises Pty Ltd v Kira Holdings (1996) 90 LGERA A68
Shoalhaven City Council v Lovell (1996) 136 FLR 58.
Parrott v Kiama (2004) NSWLEC 77

DATES OF HEARING:

24 - 25/01/2008 and 29/01/2008

EX TEMPORE JUDGMENT DATE:

29 January 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mrs M-L Taylor, solicitor
of Bartier Perry

RESPONDENT
Mr J. Cole, solicitor
of Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

29 January 2008

10674 of 2007 John Hunter v Sutherland Shire Council
This determination was given extemporaneously
and it has been edited prior to publication


JUDGMENT

1 This is an extempore judgment for an appeal that I heard last Thursday and Friday. The subject lot is known as 30 Boomerang Avenue, Lilli Pilli. The Statement of Facts and Contentions outlines the proposed development and the issues in dispute.

2 The development application is for the subdivision of an existing allotment, being lot 51 in DP 1021183. The subject site has a total size of some 2,056 square metres. The subdivision would result in one waterfront allotment, where there is an existing substantial dwelling erected in a formal landscaped setting with improvements/development on the waterfront of a jetty, pontoon and boatshed. The second proposed lot is at the rear portion of the site where it has a side boundary adjoining the bulb of the cul-de-sac. The development would, provide for two allotments: one allotment being 850.2 square metres and the other allotment with water frontage being 1,206 square metres.

3 The history of the application is outlined in council’s Facts and Contentions although I emphasise that I am looking at the merits of this development application for the subdivision. In summary the subject land was originally part of a very large allotment with access from Gundawarra Street. A dual occupancy development was approved by the Court to allow the construction of the waterfront dwelling with access from Boomerang Avenue, and the remainder of land had access off Gundawarra Street. In 1999 Counicil granted development consent for the subdivision of the dual occupancy into two Torrens title allotments each containing a dwelling.

4 The locality is a low density residential area in a natural environmental setting with many remnant Angophoras often within vegetative bands when viewed from the foreshore.

5 For the applicant the Court heard evidence from Mr Daniel Smith, a consultant town planner, of 30 Boomerang Avenue, Lilli Pilli. The Court also heard from Ms Debbie Pinfold, the council’s town planner. Mr Walker, the geotechnical engineer for the applicant gave evidence on site, as did council’s engineer, Mr Anderson. The Court also heard from Mr Peter Castor on site and also from council’s external consultant Mr David Shiels on the landscape and tree issue.

6 There was agreement that it would be necessary to remove one of the two significant Angophora trees on the subject site. The arborists disagreed as to the contribution that this tree made to the area, and not just in the context of the subject site.

7 The site inspection included a viewing from the water and it was evident from the waterway that there is a distinctive vegetative banding, with significant remnant Angophoras providing a natural setting for the built form of the dwellings.

8 The area is zoned under the council’s Local Environmental Plan (“LEP”) as environmentally sensitive 2(e2). There are a number of zone objectives which go to the retention of native vegetation and also the environmental sensitivity of the area in terms of an environment not dominated by built form.

9 Many of the dwelling houses, as could be seen on the site inspection, are substantial dwelling houses, including these at No.s 30 and 28 and 26 Boomerang Avenue.

10 The applicant is of the opinion that the proposed subdivision will be an effective use of an area of land to provide a dwelling house, and it will not be inconsistent with the character of the area and it would provide for a built form in what was described by the applicant’s consultant planner “to fill in the gap”.

11 There are two significant trees on the proposed vacant allotment known as tree 2 and tree 4, both Angophora Costatas (Sydney red gums) and the canopies of these trees are most visible from the water.

12 The difference between the experts was that Mr Shiels for the council is of the opinion that tree 4 is significant; it provides for a filtering of views, in particular from the waterway and also from Boomerang Avenue of the development up the slope towards the ridge. The ridge, it is noted, is dominated by trees itself as opposed to built form. Tree 2 also provides for the same filtering effect of the built form within the area.

13 The council road reservation contains a significant fig tree, however, this is not impacted from the aerial photographs at all scales it can be seen that there is a distinctive banding of vegetation between the adjoining lot to the north, which has frontage to Gundawarra, and Boomerang Avenue, a sweep of or a banding of vegetation from the fig tree within the council reserve, and then continuing through in a sweep over the subject allotment to the adjoining allotment known as No. 43 Gundawarra Street.

14 The Court also heard on site from the objectors, and had the opportunity of understanding their concerns from their premises and in the streetscape. Mr and Mrs Yewdall of No. 28 Boomerang Avenue gave evidence to the Court, as did Mr and Mrs Warren of No. 26, Mr Liddy of No. 43 Gundawarra, and Mr Buchanan of No. 42 Gundawarra.

15 The objectors concerns in summary, are that the proposed lot should not be built on as it provides a natural break to built form with vegetation and this contributes to the amenity of the area, and a dwelling would dominate the subject site and dominate Boomerang Avenue. The residents in Boomerang Avenue are also concerned about overshadowing by any future development on the subject site of their properties.

16 The Court asked the experts to assess in more detail the overshadowing impact of the concept dwelling house proposed with the subdivision application. I appreciate that without further detailed plans of the actual dwelling that would be built it is difficult to categorically say there would be or would not be and adverse overshadowing impact. However irrespective of the overshadowing impact in my assessment the erection of a dwelling house on the proposed allotment would have adverse impacts on the streetscape.

17 On the one hand the applicant has put forward a concept dwelling, but Mr Smith gave evidence to the effect that the concept dwelling is not part of the development application and as such the application should be looked at in terms of the subdivision as opposed to the future concept house erected on the second lot area. On the other hand, the concept dwelling house was put forward by the applicant to demonstrate that the proposed allotment is capable of accommodating a dwelling house.

18 I was also taken to other judgments of this Court and to other approvals within the Sutherland Shire area. The applicant in submissions cited the Uniting Church in Australia Property Trust (NSW) v Sutherland Shire Council (2005) NSWLEC 289, wherein it was noted in that case that the land was zoned residential and that residential development is not something that is inappropriate on a residentially zoned block as is not part of the national park.

19 I also note on further reading of the above judgment, that his Honour Lloyd J said:

“It must be said at the outset that this is a carefully and sensitively designed development that sits comfortably within an established residential area. In my experience I have not previously seen an application for subdivision into which so much thought and care has been put in creating a development which blends with its surroundings to the extent that this development does. For example, the extent to which significant trees are to be retained and protected is unprecedented in my experience; structures which impinge upon the root zones are to be suspended...”

20 I also note that whilst the above case was for a subdivision, at the same time there were conditions imposed of not only building heights but detailed envelopes for the future development of the subject land.

21 As it is a threshold question or a precondition to a merits assessment, I must undertake an assessment under State Environmental Planning Policy No. 1 (SEPP 1”) in that the minimum width of the proposed lot is less than that required under the Sutherland Local Environmental Plan 2000 cl 38. This requires an eighteen metre width for any new allotment of land created.

22 I have had regard to the principles articulated in Winten Property Group v North Sydney Council (2001) 130 LGERA 79, and also the more recent judgment of the Chief Judge of this Court on 21 December 2007, Wehbe v Pittwater Council (2007) NSWLEC 827. The Chief Judge in this judgment refers sets our 5 different approaches including that taken in Winten as well.

23 Preston J refers to Winten and he sets out a number of different approaches to a SEPP 1 objection. Paragraph 37:

“The Court exercising the functions of the consent authority must be satisfied of three matters before it can uphold the SEPP 1 objection and grant development consent to a development application.
First the Court must be satisfied the objection is well-founded (cl 7 of SEPP 1). The objection is to be in writing, to be an objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specify the grounds of that objection. The requirement in cl 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded places an onus on the applicant making the objection to so satisfy the consent authority.
Secondly, the Court must be of the opinion that granting of consent to that development is consistent with the aims of this policy, as set out in cl 3 (cl 7 of SEPP 1). This matter is cumulative with the first matter . It must be prefaced by the words in cl 7 of SEPP 1 ‘and is also’.
The aims and objects of SEPP 1 set out in cl 3 are to provide flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance in a particular case would be unreasonable or unnecessary or tend to hinder the objects specified in s 5 of the Act. The last mentioned objects are to encourage:

(1) The proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment.

(2) The promotion and coordination of the orderly and economic use of developed land.”

Thirdly, the Court must be satisfied that consideration of the matters in cl 8(a) and (b) justifies the upholding of the SEPP.”
It refers to the matters in cl 8(a) and 8(b), which are:

“(a) Whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and

(b) The public benefit of maintaining the planning controls adopted by the environmental planning instrument.
Although the Court has the power to uphold an objection without the concurrence of the Director-General, the matters in cl 8(a) and (b) are still relevant in the Court exercising its power.”

24 The Court has had regard to the SEPP 1 objection, which was submitted with the development application and I have also had regard to the evidence to the Court. As I stated, the standard under which variation is sought in the SEPP 1 objection is that contained within the Sutherland Shire LEP 2000 cl 38. For the 2(e2) zone the minimum width is eighteen metres.

25 I note, although not part of the SEPP 1 assessment, that in terms of s 79(c), the Court must have regard to, the Sutherland Shire LEP 2006, and for the purposes of this development application must be considered as if it is a draft plan, and it contains a similar provision at cl 37 in terms of the minimum width. It articulates the objectives in a more overt sense.

26 For the purpose of my assessment under SEPP 1, I will go to cl 38 which is that contained in the 2000 LEP:

“The objectives of the allotment dimension requirements are to require sufficient allotment widths and depth to enable some variations in design for development, and to ensure sites have adequate width and depth for the arrangement of sufficient side boundary setbacks, efficient driveways, efficient landscaped areas and satisfactory building form that takes into account the uses made of adjoining properties.”

27 The applicant in its SEPP 1 objection seeks to justify the variation on the basis that the majority of lots within close proximity, in particular in Boomerang Avenue, are only 15 metres wide and do not comply with the 18 metre restriction, and that the proposed subject lot varies in its width such that it is 15.8 metres to 19.4 metres.

28 Mr Smith also considers that the current development application is for land of an unusual shape, including width and length. For compliance with the standard of 18 metres Mr Smith is of the opinion that:

“It is considered unreasonable and unnecessary in this instance due to the unusual shape of the site. The entire allotment is wider than all of the surrounding allotments, and a considerable portion of the site is a width of at least 18 metres and therefore complies with the standard. The minor non-compliance that one end of the site is insignificant, noting that any future development would be located on the widest portion of the site and setback from the narrower end by approximately fourteen metres.

Council has consistently approved subdivisions of surrounding allotments with widths of approximately 15.24 metres, some with 11.25. Therefore, the subdivision will result in an allotment with a width wider than the surrounding allotments. Strict compliance with the standard is considered unreasonable and unnecessary as the objectives of the zone are clearly achieved.

The objectives require that allotments have regard to existing allotments across the zone; the second objective requires incidences of isolated sites to be minimised. This development application proposes to eliminate this isolated site from being left vacant in a residentially zoned area. The third objective requires that development complement the floor space ratio of the zone and whilst ensuring the characteristics of the area are maintained.

The proposed design of a future dwelling results in the site containing the built form and scale of a two-storey dwelling which is suitable for this allotment. The proposed concept design also results in a lower FSR...”

The variation is considered appropriate as there would be no unsatisfactory impacts on neighbouring properties…

29 Mr Smith states that the proposed subdivision application, apart from the width, is in full compliance with the council’s requirements, and refers to any future dwelling on the subject site.

30 For, the question, Is the objection well-founded? Mr Smith states:

“The above information details provide a clear justification for the minor non-compliance. It is therefore considered a well-founded variation to the standard and should be supported as it meets all other objectives of the local environmental planning instruments and specifically the zone. It would be inconsistent decision-making not to allow it. If the SEPP 1 was not allowed there would be an isolated site contrary to council’s objectives of the area.”

31 Mrs Pinfold, on the other hand, does not agree that the SEPP 1 objection is well-founded, and she considers that the objectives of the standard are not met in the circumstances of this site.

32 The test is to have regard to the objectives of the standard and I must focus on these for an assessment of the SEPP 1 objection. In particular, to ensure that sites have adequate widths and depths, sufficient side boundary setbacks, efficient driveways, sufficient landscaped areas and satisfactory building form that takes into account the uses made of adjoining properties.

33 In terms of an analysis of the constraints of the subject site, that is the circumstances of this case, I am not satisfied that the SEPP 1 objection is well-founded. In a numerical sense the numeric variation is not the test, but rather whether the objectives of the standard are met. I am also not satisfied that the objectives of the standard or the SEPP Policy itself are met by the proposed variation.

34 Whilst the applicant referred to other sites within the vicinity of the area, this is not the test. The planning regime is such that I must focus on the standard and the objectives of the standard in the LEP. In the circumstances of this case it is highly constrained and I must have regard to the objectives of the standard as to whether a variation is justified.

35 The SEPP 1 Policy is clear in the way I must assess a SEPP 1 objection. Mr Smith’s SEPP 1 objection does not focus on the objectives of the standard as to why it is justified to vary the 18 metre width. The 18 metre width in the circumstances of this site is necessary in order to provide for a site that can accommodate a dwelling house which provides also for the necessary ancillary requirements of open space and a landscaped setting, to ensure that the proposed development of the site will have an adequate width in terms of sufficient landscaped areas and satisfactory building form. In my assessment, I am not persuaded that a satisfactory building form with sufficient side (street) boundary setbacks and landscaped open space area would be achieved by future development of the vacant lot created by the subdivision.

36 The applicant’s SEPP 1 objection, or the other evidence to the Court in the course of these proceedings, that the standard is unnecessary or unreasonable in the circumstances of this case has not persuaded me that the standard should be varied. In my assessment, under SEPP 1, having regard to the circumstances of this particular case, the objection is not well-founded and is not consistent with the aims of the policy. It does not satisfy the objective that the site would have adequate width in terms of a satisfactory building form and sufficient landscaped and open space area.

37 The subject vacant lot at the end of Boomerang Avenue would create a most visible additional layer of built form when viewed from the water which would also be dominant on the streetscape because the proposed lot is narrower than the minimum. Therefore in the particular circumstances of this case, the SEPP 1 objection should not be allowed.

38 Given that I have not allowed the SEPP 1 objection it is not necessary for me to further consider the merits of the application, however, for completeness I will provide comments. The merits assessment also overlaps with the SEPP 1 assessment, or coincides with same.

39 While the proposed vacant lot satisfies the minimum size, that is 850 square metres, at the same time the boundary is somewhat contrived in that about 160 square metres relates more, in a visual and a physical sense, to the existing dwelling house at No. 30 Boomerang Avenue. As such, the effective area for a building and development of the proposed new lot is significantly smaller - 690 square metres.

40 When one has regard to the right of way over the existing No. 30 dwelling house lot, the right of way clearly has the purpose to benefit the existing dwelling house. I have excluded from the 690 that part of the right of carriageway that also serves as the access to the vacant lot at the end of Boomerang Avenue.

41 In a merits assessment the proposed easement for the access path from the subject proposed vacant lot to the water through No. 30 is not acceptable as it traverses the waterfront lot allotment in a manner that would impose on the privacy to the existing dwelling. This may not have been fatal to the application because the access path could have been deleted if this was the only reason as to why the application fails.

42 What is fatal to the application in a merits assessment is that a future dwelling would be dominant and not ‘sit’ comfortably in its context, in particular having regard to the environmentally sensitive area and having regard to the objectives of the zone. In my assessment approval of the subdivision would result in an allotment that would not appropriately accommodate a dwelling house within a landscaped setting.

43 The applicant proffered that there could be replacement trees planted. While in many instances replacement canopy trees are appropriate to be considered in subdivision applications, as all trees cannot always be retained on all sites. But nonetheless I must have regard to the fact adequate space is required for replacement canopy trees to be planted as well as providing usable areas for recreation and whether in the long term the replacement canopy trees would survive with competing demands.

44 The removal of the Angophora itself is not fatal to the application but the lack of real opportunity given the constraints of the site for a replacement canopy tree. I agree with the council’s expert that the existing tree is an important remnant tree within the area and does contribute to the existing vegetative banding when viewed from the waterway. The tree will now continue to contribute for some 40 years plus to the amenity of the area consistent with the council’s objectives for the area.

45 Banding may in fact incorporate replacement canopy trees, but I am not satisfied that the proposed allotment, given its restrictions in terms of topography, excavation, retaining walls and in terms of its juxtaposition at the end of the cul-de-sac would provide for commensurate areas that could be appropriately landscaped to provide effective filtering of the built form. In the context of the area it is important that future development be within a landscaped setting.

46 I was asked at one point in the proceedings to make my determination on the importance of whether tree No. 4 and the geotechnical information was fatal to the application. I declined because I consider that a holistic consideration of this proposed subdivision is important having regard to the history of the application and having regard to the need for a comprehensive assessment, which includes whether an appropriate future built form could be built on the vacant lot to be created.

47 In this regard I refer to a judgment of Bignold J in Memel Holdings Pty Limited v Pittwater Council (No 3) [2001] NSWLEC 240:

“It is not uncommon in the context of consideration of a development application for the subdivision of the land that consideration be given to the question of the future development of the subdivided lots. See Inghams Enterprises Pty Ltd v Kira Holdings (1996) 90 LGERA A68 and Shoalhaven City Council v Lovell (1996) 136 FLR 58.”

48 While the applicant did not submit that the subdivision was a line on a map, the applicant’s town planner suggested that the details could be considered at the dwelling application stage. However on sites that are environmentally sensitive, clearly the appropriateness of a future dwelling must be considered at the subdivision stage.

49 The Court has also had regard to the matter of Parrott v Kiama (2004) NSWLEC 77 wherein a planning principle established, concerning when should a subdivision application include information on the buildings to be built on the resulting allotments:

“It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate, in most cases it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual or environmentally sensitive, or where significant impacts on neighbours is likely and needs careful design to minimise them.”

50 At the end of the proceedings the applicant proffered that a condition could be attached requiring a covenant over the future lot for a maximum RL height if there is concern as to whether the rock ledge at the rear of the site would still be visible. However, this is not the only issue but rather I am not satisfied the subdivision would provide for appropriate future development.

51 If I considered that the subject site had the capacity and capability of accommodating a dwelling envisaged and contemplated by council’s planning controls including, the existing 2000 LEP and the 2006 zone objectives for the area, I would have allowed an adjournment to allow for an envelope to be prescribed.

52 While I agree with the submission made on behalf of the applicant that one does not necessarily need to screen out built forms in an environmentally sensitive area, clearly canopy trees must be able to filter the visibility of built forms from the waterway.

53 The engineer’s evidence was that there would be up to 6 metres of excavation required over the site and there was also evidence as to the gradients over various parts of the site. The site very steeply rises from the end of Boomerang Avenue. For the minimum width, it is also important in the circumstances of this case that there be a greater width to allow for a greater setback to the street than that proposed in the concept dwelling which has a 3.5 metres setback. In my assessment this would not have the ameliorative effect of providing a landscaped setting or a suitable landscaped setting contemplated by council’s controls.

54 The physical constraints are obvious, the slope being 15 to 20 and 28 to 30 degrees, and it was agreed between the arborists that the site should be vegetated to stabilise the slope of same.

55 I prefer the more objective analysis undertaken by Mrs Pinfold in this case to that of the applicant’s planner and his Statement of Evidence.

56 Mrs Pinfold identifies the context in which one must consider the development application including:

“The new 2006 zoning system has been introduced and, the site and surrounding properties is zone 1 housing:
Zone 1, environmental housing, environmentally sensitive land.
Land located within this zone is considered to be environmentally sensitive land with significant environmental and scenic values that need to be protected. It is a foreshore zone where typically the natural environment still dominates the built form. The key factor in the characterisation of this zoning and establishment of zone boundaries was a finding of a background study of the scenic quality of the foreshore area.
This study examined the scenic quality of the foreshore areas of the Sutherland Shire and characterised the foreshore areas in relation to the degree to which vegetation and natural elements were visually significant foreshore elements. Generally where the natural areas and vegetation remained dominant, zone 1 environmental housing was adopted; where the natural environment along the foreshore areas was already significantly built out, this is zone 2.”

57 With the benefit of the site inspection and the evidence I accept Mrs Pinfold comments in her summary on the planning context where she states:

The site is a steep, environmentally sensitive site, in a visually prominent location. The eastern end of the site makes a significant contribution to the natural qualities of the locality particularly when viewed from the waterway and foreshore areas, and the current (SSLEP 2000) and recently introduced (SSLEP 2006) zone objectives seek to allow development only when it can retain and enhance these natural qualities. Further, the retention of the eastern end of the site in a natural state is the result of a deliberate planning decision, which remains valid under the current and recently introduced planning schemes.

58 Mr Smith in his evidence pointed to other examples where council has allowed development, however these must be considered in their own context and in terms of the planning regime at the time of those approvals.

59 Mr Smith, in his statement, also justifies the development of the site as if it were an existing residential allotment. It is not an existing residential allotment, but rather it is one that could only be created if a SEPP 1 variation was allowed. It is zoned residential and it is part of an existing residential allotment which has been developed. It is not an isolated allotment as he claims in his statement of evidence.

60 There were issues raised about drainage. I do not need to canvass those matters in my judgment. The application fails on the SEPP 1, but also in terms of a merits assessment of accommodating a dwelling that would fit within the environment as contemplated by the council’s planning regime. The development application for subdivision is not appropriate.

61 In terms of the geotechnical it was stated that there had been a ‘walkover’ or a preliminary assessment in terms of the geotechnical matters. These were cited, by residents as of concern. Mr Walker was asked many questions by the Court about the adequacy of the assessment that had been done to date and what the geotechnical certainty for the site is in terms of its capability of being developed.

62 I accept his evidence that the site is capable of being developed even though it may be dependent upon the cost of requiring a detailed unique design for this particular site. This has not been determinative because if I was minded to grant approval to the development application for the subdivision, I could have imposed a deferred commencement condition for a further geotechnical assessment as suggested by the applicant.

63 There were also questions raised about overlooking and privacy. Once again, these are not determinative in my refusal of the application because in steeply sloping areas, in particular that enjoy expansive water views, mutual overlooking is not uncommon. Clearly, dwellings need to be designed such that they do not impose an unreasonable extent of overlooking to the dwelling or private open spaces, but in this case it is not a reason for refusal.

64 Mr Liddy was concerned about access to his property through the subject site. Once again, this not a matter for me in these proceeedings. By way of comment from the information that has been provided there would appear to be no restriction or covenant on the title of the subject property by a right of carriageway or an easement to benefit No. 43 Gundawarra.

65 It was submitted on behalf of the applicant that the applicant is being punished by the fact previously the council allowed the removal of a peppermint tree but did not require a replacement tree. Whilst this is a matter that council in hindsight may have considered desirable it is not a reason for my refusal. By way of comment as a matter of general policy a replacement tree should be a requirement when permission to remove canopy trees is granted unless the individual circumstances prevent same.

66 In summary I conclude the constraints of the site in combination, its context at the end of the cul-de-sac, the impact on the streetscape, and introducing an additional level of built form would be most noticeable and not sympathetic to this environmentally sensitive area. As such the application also fails on a merits assessment as well as not satisfying an assessment under SEPP No. 1 to vary the minimum width.

67 Accordingly on the basis of my assessment above the following orders of the Court are made:

1. The appeal in respect of the property known as 30 Boomerang Avenue, Lilli Pilli is dismissed.
2. The objection made under SEPP 1, to vary the minimum allotment width of eighteen metres in cl 38 of the Sutherland LEP 2000, is not allowed.
3. The development application submitted to Sutherland Shire Council, as amended, to subdivide the land into two lots with site areas of 850.2 and 1,206 square metres is determined by the refusal of consent.
4. The exhibits are returned to the parties.

___________________

J S Murrell
Commissioner of the Court
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