Kelly v Sutherland Shire Council

[2006] NSWLEC 735

Land and Environment Court

of New South Wales

CITATION:	Kelly v Sutherland Shire Council [2006] NSWLEC 735
PARTIES:	APPLICANT Lorraine Kelly RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	10621 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- change of existing buildings on-site from a single occupancy to a dual occupancy - preliminary issue of permissability
LEGISLATION CITED:	Sutherland Local Environmental Plan 2000
DATES OF HEARING:	2/11/06
EX TEMPORE JUDGMENT DATE:	11/02/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr P Rigg, solicitor SOLICITORS Deacons RESPONDENT Mr J Reilly, solicitor SOLICITORS Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

2 November 2006

10621 of 2006 Lorraine Kelly v Sutherland Shire Council

JUDGMENT

1 This appeal comes before the Court in relation to DA06/0288 to change the use of the existing buildings on-site from a single occupancy to a dual occupancy by utilising the existing music room as a single bedroom and to convert the temporary kitchen to a permanent kitchen. It is further proposed to use one of the garage spaces as a garage for the one bedroom dual occupancy. It is not proposed to subdivide the dual occupancy develop either by Torrens title or Strata title.

2 The site is 678 Port Hacking Road, Dolans Bay. It is described as Lot C in DP384014 and is a long and relatively narrow waterfront property that contains an existing two-storey dwelling house with a detached two-storey garage and games room building. The north west boundary of the site adjoining 674-676 Port Hacking Road is approximately 149.5 m in length. The south east boundary of the site adjoining 680 and 682 Port Hacking Road is approximately 48.5 m in length with a splay of approximately 8.2 m, and then a further length of approximately 93.6 m to Dolans Bay. The southern part of the allotment is 6.095 m in width and the allotment width varies between 13 m and 14 m as the site falls towards the northern boundary adjoining Dolans Bay. The site has a total area of 1568 sq m.

3 The council filed a Statement of Issues containing 5 individual issues and a number of sub issues. Issue 1 raised a threshold issue of permissibility and the parties agreed that this should be determined as a preliminary matter. There was agreement that it was a question of fact rather than a question of law.

4 The site is within the 2(e2) Residential zone under Sutherland Local Environmental Plan 2000 (the LEP). The development control table for the zone states that “dual occupancy housing except on internal allotments” is development that requires development consent. Conversely, dual occupancy housing that is on an internal allotment is prohibited.

5 Internal allotment is defined at cl 5 of the LEP as meaning,

“an allotment within a residential zone where there is no practical lawful vehicular access to any existing or proposed buildings on the allotment, or where the only practical lawful vehicular access to any existing or proposed building on the allotment is by way of an access corridor (a hatchment shaped allotment) or a right of carriageway over another allotment”.

6 The issue between the parties is whether the Lot C is an internal allotment.

7 Mr Reilly, for the council, submits that Lot C is an internal allotment and as such the proposed development is prohibited and must be refused. He submits that the only practical lawful vehicular access to the existing buildings on the allotment is by way of the 6.095 metre wide section of the lot from Port Hacking Road. This part of the allotment is also subject to a Right of Way for access to the adjoining property, Lot B. There are no buildings located within the 6.095 wide portion of the allotment and it is arguable that a dwelling or other structure could be erected on this part of the allotment.

8 Mr Rigg, for the applicant, submits that Lot C is not an internal allotment. He relies on the council’s Residential Subdivision Development Control Plan 9.1/01 (the DCP), where at cl 13.1 it states that:

A right of carriageway is to comprise a 2.75 metre wide concrete pavement with kerb and relief drainage where required;”

9 For this reason a width of 6.09 m could not be regarded as an access handle under the DCP. Further, he submits that dwellings in other parts of Sydney could be constructed on an allotment with a width of 6.095 m. He also submits that is a distortion to describe the allotment as a hatchet shaped allotment, as the proper description would be an irregular shaped allotment of variable width. Accordingly, the proposed dual occupancy development is permissible with consent.

10 In balancing the competing submissions I prefer the submissions of Mr Reilly. The LEP does not contain a definition of access corridor or hatchet shaped allotment. However, I am satisfied that that part of Lot C that is 6.095 m and runs for a distance of some 48 m, is an access corridor for the site. It performs this role at present for the allotment and also for the adjoining Lot B. There are no improvements in this area and with the area subject to a Right of Way for access to Lot B, it would be improbable that it could be used for any other purpose other than access.

11 I am also not satisfied that the term hatchet shaped allotment can be seen to promote any specific ratio between the different parts of the allotment. It can only be read as a general description of an allotment where one part of the allotment is larger than the other part, but has the general form of a hatchet. In my view the form of Lot C is consistent with a hatchet shaped allotment. I am also not satisfied that any reference to the erection of dwellings in other parts of Sydney is relevant in this case.

12 While the Court was urged by Mr Rigg to place some weight on the provisions of the DCP, and principally the 2.75 m wide concrete pavement requirement I accept Mr Reilly’s submission that is not a matter that should be given any weight. The definition in the LEP must be the principle source of consideration. Even putting this aside I do no accept that the DCP requirements provide any support for the applicant’s submission. There is no requirement in the DCP that an access corridor be 2.75 m as suggested by Mr Rigg (as opposed to the 2.75 m pavement width requirement in the DCP). It may be wider than 2.75 m so as to contribute to the character of an area or the amenity of adjoining residential development through additional area for landscaping and separation. The provisions of services may also require a right of carriageway greater than 2.75 m. Clause 14 of the DCP contemplates rights of carriageway greater than 2.75 m.

13 For these reasons, I find that Lot C is an internal allotment as defined by cl 5 of the LEP, in that the only practical lawful vehicular access to any existing or proposed building on the allotment is by way of an access corridor (a hatchment shaped allotment). As such the proposed development is prohibited.

14 The orders of the Court are;

1. The appeal is dismissed.
2. Development Application No. 06/0288 for the conversion of existing building to a dual occupancy development at 678 Port Hacking Road, Dolans Bay is refused.

___________________

G T Brown
Commissioner of the Court