Johnson v Sutherland Shire Council

[2006] NSWLEC 92

Land and Environment Court

of New South Wales

CITATION:	Johnson v Sutherland Shire Council [2006] NSWLEC 92
PARTIES:	APPLICANT A Johnson RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	10218 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application - Subdivision :-
LEGISLATION CITED:	Sutherland Shire Local Environmental Plan
CASES CITED:	Tenacity Consulting v Waringah [2004] NSWLEC 140; Landscape Development Control Plan; .
DATES OF HEARING:	7 September 2005 and 14 February 2006
EX TEMPORE JUDGMENT DATE:	02/14/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr S Berveling, barrister RESPONDENT Mr C Mathieson, solicitor Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

14 February 2006

05/10218 A Johnson v Sutherland Shire Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

JUDGMENT

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Sutherland Shire Council (the council) on the 23 February 2005 of Development Application 1893 of 2004 for the subdivision of two existing allotments at 120 and 122 Wilson Parade, Heathcote (the site) into three allotments.

2 When the matter was first before the Court, on 7 September 2005, all the proposed allotments in the subdivision did not comply with the minimum lot size provided for by the Sutherland Local Environmental Plan (the LEP) and the relevant development control plan.

3 As a consequence of non-compliance of with the LEP, an objection pursuant State Environmental Planning Policy 1 would have been required to be sustained before the application could be approved.

4 On that occasion, I indicated to the applicant (who then appeared in person) that I could not see any reason why it was not possible to design a compliant subdivision proposal. I adjourned the matter to permit that to occur.

5 The applicant and his advising surveyor have now reconsidered the subdivision design. An amended plan of subdivision has been tendered which provides for three allotments which are all compliant with the minimum required allotments area. It is on that amended plan that the applicant now relies on these proceedings.

6 The council has agreed to enter into consent orders based on this revised, compliant plan of subdivision.

7 That amended plan has been notified not only to all those persons who objected to the original proposal but also to all those required to be notified as part of the council’s notifications policy.

8 Although only one written objection was received, from Mr and Mrs White, the neighbours on the eastern side, a number of other residents have attended the hearing to express their concerns about the proposed development.

9 During the course of the morning, I had the opportunity to hear informal evidence relating to those concerns and to inspect the proposed boundaries of the allotments.

10 There is a tolerance in compliance with the minimum allotment size (but a minor one) between the northern of the two allotments fronting Wilson Parade and the allotment fronting Dillwynnia Grove that will permit a further modest adjustment to this boundary to insure that a Cypress pine located in the elbow of the proposed boundary (and presently bisected by the proposed allotment boundaries) can be retained.

11 Mr Berveling, counsel for the applicant, accepted that such a redesign can be achieved while still maintaining compliance with the minimum lot sizes. I granted the foreshadowed leave to amend in that respect and required a revised plan to be filed.

12 I also read the conditions of consent that are proposed as part of the consent orders – this matter now coming not opposed by the council.

13 Conditions 40 and 41 of the proposed conditions of consent needed to be revised. First, proposed condition 40 authorises the removal of a Sydney Red Gum, Angophera costata, in the northeastern corner of proposed lot 22.

14 It is obvious, from examination of the site, that nothing to do with the subdivision or any works associated with it would require interference with any of the substantive trees that are located on proposed lot 22.

15 It is therefore inappropriate that any consent permit the removal of the Sydney Red Gum or any other tree as part of subdivision approval. As a consequence, the provisions of condition 40 will need to be amended to remove this threat.

16 Consequentially, condition 41 is to be removed from the conditions of consent, as its utility is contingent on the removal of the Sydney Red Gum.

17 During the course of the proceedings, a range of documents raised three matters of broad concern on behalf of the local community. In addition, Mr and Mrs White raised a number of specific matters.

18 The first of the broad community concerns is the adequacy or otherwise of egress from the neighbourhood in the event of a catastrophic bushfire. As the site is in a bushfire prone area, the proposal is integrated development requiring consideration by, and consent of, the New South Wales Rural Fire Service (the RFS), the statutory body with a responsibility to deal with bushfire matters.

19 I have a letter, signed on behalf of the Manager – Development Control Services of the RFS, dated 30 January 2006 indicating that the RFS has reviewed the information provided concerning the proposed amended development and has no concerns regarding the amended proposal. This position is not answered any expert evidence calling into question the opinion of the RFS. Whilst concerns the local residents are understandable, they are not matters that, in the face of the RFS letter, would permit refusal of the application on this ground.

20 The second of the broad community concerns raised traffic and vehicle safety matters in Dillwynnia Grove. Evidence was given, on behalf of the council, concerning compliance with the relevant Roads and Traffic Authority guidelines for a single dwelling development of the lot proposed to be created. Whilst the concerns of the local residents are also understandable on this issue, in the face of the council engineering evidence, there is nothing which would permit refusal of, or amendment to, the application on this ground.

21 The final of the broad community concerns has been put as the proposed interference with the general development pattern and density within the East Heathcote precinct which is zoned 2(e1) under the LEP.

22 I am obliged, as a matter of law, to deal with that this application within the statutory planning controls set by the council's LEP which apply to the site. As earlier noted, the development is permissible and compliant and there is no basis upon which I could lawfully refuse for those reasons.

23 The residents also raise a number of other matters which are of concern to them. However, these are matters which will necessarily arise or consideration of the time of the lodgement of a development application for a construction of a dwelling on proposed lot 22.

24 In these proceedings, I am merely obliged to deal with whether it is physically possible to construct some dwelling which would have functional utility on the proposed new allotment.

25 The questions of the impacts of such a dwelling, if any, on the White residence are matters which are required to be dealt with at development application stage for that dwelling and not in these proceedings.

26 I am satisfied that would be possible to construct a compliant dwelling on the proposed new allotment.

27 The matters arising at development application stage for construction of that dwelling and the question of its impact, if any, on the White dwelling, will be dealt with by the council at that time.

28 Although Mr and Mrs White also raise the question of the impact on their outlook from the rear patio area and their kitchen construction of any dwelling on the site, there are no planning principles that require the absolute protection of views across private property or into private property.

29 The relevant planning principles established by Roseth SC in Tenacity Consulting v Waringah [2004] NSWLEC 140 deal primarily with views in the public domain. However, the impacts on amenity, overshadowing and views over private open space of a dwelling, which would be located on proposed lot 22, are all matters that will require consideration by the council at that stage.

30 Similarly, Mr and Mrs White express concern about the possible removal of the Cypress pines and other vegetation on the southern boundary of lot 22 and how that would create view corridors into their private open space from the medium density dwellings to the south of lot 22.

31 That, too, is a matter of consideration by the council, when and only when, some future proprietor of lot 22 was to apply to remove those trees. Those trees inevitably will be subject to the council’s tree preservation provisions and this would be considered on such a removal application.

32 I finally turn to deal the matter raised by Mr White concerning the calculation of (and, in his view, non-compliance of) lots 20 and 21 with the minimum landscape area required by the LEP and by the Landscape Development Control Plan.

33 I admitted into evidence a document entitled Best Practice Guidelines – How to Calculate Landscaped Area (the best practice guidelines), being a council document dated December 2001. It is not apparently ordinarily a public document.

34 Mr White raised it in the proceedings as it is adverted to in clause 4.6 of the Landscape Development Control Plan as being a document which should be considered when preparing the landscape submissions for development sites. In utilising it, I have had regard to matters that it describes as usually to be and not to be included within landscape areas of a site.

35 Mr White objected to a number of areas on lot 20 being included in the calculation of landscape area of that allotment. These were:

• the areas between the driveway and the adjacent boundary and between the driveway and the adjacent building;
• the boundary setback of the garage; and
• the side boundary setback of the existing dwelling.

36 With respect to the areas on either side of the driveway, I have expert opinion that the width of the hard area of the driveway – that is the distance across the wheel carriageway between their outer edges – is compliant with the 85th percentile as required by the relevant Australian Standard for the passage of the outer extremity of any vehicle using that driveway. It is, therefore, appropriate and permissible for me to include the areas on the outer side of each of those wheel paths as part of the landscape area.

37 There is nothing in the best practice guidelines that would require me to exclude the areas in the set backs of the garage or of the dwelling. I am satisfied I should permit them to remain in the landscape area calculations.

38 I therefore accept that lot 20 satisfies, just, the requirements for a 50% landscape area.

39 With respect to lot 21, the calculations put on behalf the applicant demonstrate a greater generosity of landscape area.

40 Despite this, I am satisfied that if I exclude the pervious hard landscape area and exclude a modest further amount of the soft landscape area to provide for the possibility of a driveway and carport, the allotment will still exceed, modestly, the minimum 50% soft landscaping requirement for that allotment.

41 Therefore, there is no reason why I should refuse the appeal. The orders of the Court, by consent, will be:

1. The appeal will be upheld;
2. Development Application 1893/2004 for the subdivision of 120 and 122 Wilson Parade, Heathcote, into three allotments will be determined by the granting of development consent subject to final conditions which remain to be settled, in one minor regard, between the parties and subject to the filing of an amended plan of subdivision to ensure protection of the Cypress pine on the boundary between lot 22 and lots 20 and 21.

Tim Moore
Commissioner of the Court