Lang v Pittwater Council

[2006] NSWLEC 474

Land and Environment Court

of New South Wales

CITATION:

Lang v Pittwater Council [2006] NSWLEC 474

PARTIES:

APPLICANT
Anthony Lang and Ursula Lang

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10195 of 2006

CORAM:

Brown C

KEY ISSUES:

Development Application :- subdivision - minimum lot size - loss of trees - character

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Threatened Species Conservation Act 1995
Pittwater Local Environmental Plan 2001
State Environmental Planning Policy No. 1

CASES CITED:

Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46;
Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986) ;
Parrott v Kiama [2004] NSWLEC 77

DATES OF HEARING:

27, 28/07/06

 
DATE OF JUDGMENT: 

08/03/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Shaw, solicitor
SOLICITORS
Shaw Reynolds Lawyers

RESPONDENT
Ms H Irish, barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

3 August 2006

10195 of 2006 Anthony Lang and Ursula Lang v Pittwater Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Pittwater Council (the council) of DA No N0171/04 for the subdivision of the property at 45 Riverview Rd, Avalon (the site) into two lots.

The site and surrounding area

2 The site is Lot 4 in DP 17910 and has a frontage to Paradise Ave and Riverview Rd. It is generally rectangular in shape with a frontage to Paradise Ave of 15.775 metres, a frontage to Riverview Rd of 15.24 metres, a northern boundary of 81.46 metres and a southern boundary of 77.42 metres giving a total site area of 1210.7 square metres.

3 A dwelling, carport and shed are located on the site. Access to the carport and dwelling is from Riverview Rd. The surrounding area is predominantly residential in nature with dwellings of various ages and architectural styles situated on a range of lot sizes.

4 The site contains a large amount of natural vegetation generally consisting of remnants of the endangered ecological community Pittwater Spotted Gum Forest (the ecological community). The ecological community is listed as an Endangered Ecological Community in Part 3 of Schedule 1 of the Threatened Species Conservation Act 1995. The ecological community is rare and is in danger of becoming extinct. Much of the ecological community has been lost through development although it is represented in reserves in Pittwater. Remnants of the ecological community are found in the Pittwater area and consist mainly of Spotted Gums (Corymbia maculata). Spotted Gums are canopy trees that also provide a food source for native fauna.

5 The development application contains a 7 part test required by s 5A of the Environmental Planning and Assessment Act 1979 (the EPA Act) that concludes that the endangered ecological community is not likely to the significantly impacted by the proposal and as such a Species Impact Statement is not required. The council did not dispute this conclusion.

The proposal

6 The proposal provides for the subdivision of Lot 4 into two lots. Lot 1 will have a frontage to Riverview Rd and have an area of 550 square metres. A building platform has been shown on the survey plan and a hypothetical dwelling design provided for this lot. The existing improvements within this proposed lot are to be removed. Lot 2 will have an area of 660.7 square metres and will contain the existing dwelling. A new open car parking area and utility trench is to be provided off Paradise Ave for this lot.

7 The proposal provides for the removal of a number of Spotted Gums for the building envelope on Lot 1 and the open car parking area of Lot 2.

Relevant planning controls

8 The site is within the Residential 2(a) zone under Pittwater Local Environmental Plan 2001 (LEP 2001). The subdivision of land is permissible within this zone with consent. Clause 11(2) provides requirements for subdivision within residential zones and requires a minimum area of 700 square metres. As both proposed lots do not satisfy the minimum area requirement, an objection under State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) was provided.

9 The site is identified as being in Area 1 on the Dual Occupancy Map. Clause 21B prohibits dual occupancy developments in Area 1.

10 Pittwater 21 - Draft Local Environmental Plan (the draft LEP) is relevant, as it has been placed on public exhibition. The site is located within a residential protection zone. For the site, a minimum lot area of 700 square metres and a minimum lot width of 16 metres are required. The evidence indicates that the draft LEP has not progressed after exhibition and consideration by council because of the requirement from the State government that it adopt the standard template for local environmental plans. For this reason, the draft LEP could not be imminent or certain and should be given no weight in the proceedings.

11 Pittwater 21 Development Control Plan (the DCP) applies. Clause B2.2 provides requirements for the subdivision of residential zoned land and requires a minimum lot size of 1200 square metres and a minimum lot width of 16 metres. As explained to the Court, the DCP was prepared as a companion document to the draft LEP and contained the same minimum 1200 square metre minimum lot size requirement. Following discussions between the State government and the council, the council amended the minimum lot size of 1200 square metres in the draft LEP to reflect the existing requirement of 700 square metres but no amendments were made to the 1200 square metre minimum lot size requirements in the DCP. The DCP requirement is clearly inconsistent with LEP 2001 and the council did not press compliance with the 1200 square metre minimum lot size requirement in the DCP.

12 Clause A4.1 contains the desired character statement for the Avalon locality.

The issues

13 The council filed a Statement of Issues containing 7 issues. These can be grouped into following main areas:

1) whether the SEPP 1 objection to the minimum lot size requirement is well founded (Issues 1, 2 and 3),
2) whether the proposed development will unacceptably impact on existing flora, fauna and other natural features (Issues 4, 5 and 7), and
3) whether the proposed development will unacceptably impact on the existing character of area (Issue 6).
The evidence

14 The parties agreed to the appointment of Mr Lawrence Winnacott as the Court appointed town planning expert.

15 Mr Nicholas Skelton provided additional evidence on the flora and fauna issues for the applicant. Mr Guy Paroissien and Ms Sue Hobley provided additional evidence on the flora and fauna issues for the council.

Lot sizes
The assessment approach

16 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

17 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state:

5.The objects of this Act are:

(i) 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;
(ii) the promotion and coordination of the orderly and economic use and development of land.

18 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

19 In Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986) Cripps J addresses to the approach to be taken when considering a SEPP 1 objection where he states:

….it now established that is not sufficient merely point to what is described as absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose.

….it is not be used as a means to effective general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.
The SEPP 1 objection

20 The SEPP 1 objection identifies the underlying object or purpose of standard from the aim in cl 11, i.e., "to create more varied allotment sizes, improve residential amenity and enhance the environment in relation to which this clause applies".

21 The SEPP 1 objection states that the proposed development complies with the aim in cl 11 for the following reasons:

• the proposal creates the opportunity for more varied lot sizes,
• the proposal will improve residential amenity and enhance the environment by improvements to the existing house, the removal of unattractive existing structures, improvement to the existing vegetation on-site through the removal of weeds, additional canopy space and root zones for some trees, improvement to services and facilities through s 94 contributions and increased population that will support public transport and local facilities,
• future development can be controlled to protect existing residential amenity.
  

22 Strict compliance with the development standard will:

• prevent the reasonable development of the land into two lots,
• prevent improvements to the existing property and consequently improvement to the streetscape of Riverview Rd and Paradise Ave,
• allow a reasonable and balanced approach to tree removal,
• provide the better utilisation of underused infrastructure consistent with the governments Metropolitan Housing Strategy, and
• allow the creation of 2 functional lots with minimal development constraints and an absence of environmental harm.
  

23 Compliance with the development standard is both unreasonable and unnecessary because:

• the property has two road frontages and is currently underdeveloped,
• both lots can adequately accommodate a dwelling without affecting residential amenity or causing environmental harm,
• the proposal is compatible with the surrounding subdivision pattern,
• there is an absence of environmental harm,
• the majority of the existing trees are retained,
• the proposal maintains and improves an existing dwelling, and
• there will be benefits to the environment through weed removal.
  

24 Considering these reasons, strict compliance with the development standard is unreasonable and unnecessary and the SEPP 1 objection is well founded.

Mr Winnacott’s evidence

25 Mr Winnacott states that the SEPP 1 objection is not well founded. In his opinion, it has not been established that compliance with the development standard is unreasonable or unnecessary and consequently that the proposed lot areas are appropriate in this case. He bases this conclusion on:

• the size of the departure from the development standard is significant, being 21.4% for Lot 1 and 5.6% for Lot 2,
• approval may encourage other similar applications,
• any reliance on improvements to the existing dwelling or quality of the existing vegetation cannot be supported as these matters can be carried out at any time without subdivision,
• additional s 94 contributions and increased population to support public transport and local facilities is not a justification for the variation of the development standard,
• any reliance on existing lots less than 700 square metres cannot be supported as the examples in the SEPP 1 objection do not identify any subdivision of lots less than 700 square metres since the introduction of Warringah Local Environmental Plan 1985 or LEP 1993,
• the statement that the proposal provides for 2 fully functional lots cannot be supported as the building envelope for Lot 1 does not comply with the DCP requirements. Additionally, a number of trees that comprise an endangered community would not be removed if the subdivision does not proceed,
• the 700 square metre standard has applied to the Pittwater local government area for many years and provides a clear statement of the council's subdivision standards for the area, and

• the Metropolitan Housing Strategy does not support the SEPP 1 objection as the 700 square metre development standard for the area responds to the strategy.

  Findings

26 I agree with Mr Winnacott that the SEPP 1 objection is not well founded for a number of reasons. The Court must assume that the development standard has a purpose. It is reflected, in part, in the aim in cl 11. While cl 11 goes some way in establishing the underlying object or purpose of the development standard, it must be remembered that the clause applies equally to subdivision in all residential zones. SEPP 1 requires the circumstances of the particular application to be considered in the assessment of the SEPP 1 objection.

27 Clause A4.1 contains the desired character statement for the Avalon locality and provides further guidance in establishing the underlying object or purpose of the development standard. Relevantly it states:

The Avalon Locality will remain primarily a low-density residential area characterised by one and two-storey residence in a natural landscape setting,….

The indigenous tree canopy vegetation will be retained and enhanced to assist development blending into the natural environment, to provide Koala feed trees and undergrowth for smaller animals, and to enhance wildlife corridors. The natural landscape, including wetlands, rocky outcrops, remnant bush land and natural watercourses, will be preserved.

28 Considering the desired character statement for the Avalon locality, the underlying object or purpose of the development standard is not only to create more varied allotment sizes, improve residential amenity and enhance the environment but importantly, in a context of a low-density residential area where indigenous tree canopy vegetation will be retained and enhanced to assist development blending into the natural environment. The significance of the retention of the tree canopy is heightened by the existence of Spotted Gums and the fact that they are part of an endangered ecological community.

29 The removal of trees was a major part of the proceedings. It is an issue in itself but it is also a matter that needs to be considered as part of the assessment of the SEPP 1 objection because the underlying object or purpose of the development standard refers to the natural environment and the retention of the tree canopy.

30 The parties agreed that the proposed subdivision would necessitate the removal of 4 Spotted Gums and a Grey Gum (Trees T11, T20, T21 and T22 for Lot1 and T43 for Lot 2). These trees have canopy heights ranging from 19 metres to 26 metres and all are in fair condition based on a scale of good, fair or poor. All but T20 have a Safe Useful Life Expectancy (SULE) rating of Medium or Long. Tree T20 has a SULE rating of Short. Tree T10 is an exotic species and is also to be removed but with the agreement of the council. The respective experts disagree however on the likely impacts of the subdivision on other significant trees in the vicinity of the building envelope, the open car parking area and the proposed utility trench.

31 Based on the number of significant trees to be removed I am not convinced that the proposed subdivision satisfies the underlying object or purpose of the development standard, in that the proposed development does not provide that the indigenous tree canopy vegetation will be retained and enhanced to assist development blending into the natural environment. The removal of the trees will clearly impact on the existing tree canopy when viewed from near the site and from more distant areas.

32 While I do not rely on the loss of trees beyond those agreed by the parties, I share the concerns of Mr Paroissien and Ms Hobley that additional trees may be lost because of their proximity to the proposed building envelope and open car parking area. For Lot 2, Tree T49 is particularly vulnerable because of the existing excavation for Paradise Ave as could other trees in the area near the car parking area because of the amount of excavation and the uncertainty of the location of the services trench.

33 For Lot 1, the impact on other existing trees is largely dependent on the location of any future dwelling. I note Mr Winnacott’s concerns that the building envelope does not satisfy the DCP requirements for side setbacks as the building envelope reflects the location of the existing carport and shed. I agree with Mr Winnacott that the location of existing buildings should not necessarily determine the location of the building envelope and that the side setback requirements in the DCP should be adopted.

34 In my view, the planning principle in Parrott v Kiama [2004] NSWLEC 77 can be applied in this case as the sensitivity of existing trees calls for a specific dwelling design rather than a generic building envelope and hypothetical dwelling. Relevantly, the planning principle states:

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

The design of the future house (at least the outline design) is not a matter that is appropriately left till later.

35 While finding that the proposed subdivision is not appropriate, I accept that the applicant has taken reasonable steps to minimise the impact on the existing vegetation and this approach would have been given greater weight if the application did not involve the creation of lots below the minimum size. The removal of significant trees and the creation of undersized lots clearly places a greater burden on the applicant than would occur where the only issue was the removal of trees.

36 On the issue of character and the existence of lots below 700 square metres in the locality, Mr Winnacott’s assessment of the sites identified in the SEPP 1 objection clearly shows that the council has consistently applied the subdivision standard applicable at the time. Even though the hypothetical dwelling design would likely sit comfortably in the streetscape of Riverview Rd, the loss of significant canopy trees and the potential loss of further trees leads to the conclusion that the proposed development would have unacceptable impact on the character of the locality. I am also mindful that the building platform does not comply with the DCP requirements for side setbacks and the potential to further adjust the building platform is constrained by the reduced site area and the existence of significant trees.

37 For these reasons I do not accept that the proposed subdivision will improve residential amenity and enhance the environment.

38 I also accept Mr Winnacott’s evidence that a number of the matters raised to support the SEPP 1 objection, such as additional s 94 contributions, increased population, improvements to the existing house and the removal of unattractive existing structures, are not matters that can be reasonably used to support an argument that compliance with the development standard would be unreasonable and unnecessary. Also, any suggestion that the proposed subdivision is acceptable as there is an absence of environmental harm must be rejected because of the findings in Hooker Corporation.

39 I also accept Mr Winnacott’s evidence that a reference to more varied allotment sizes in cl 11 must be a reference to more varied allotment sizes above the minimum requirement of 700 square metres. To adopt any other meaning would be to ignore the requirements in cl 11.

40 While the impact on native fauna was raised as an issue, I understood there to be general agreement between Mr Paroissien and Mr Skelton that if the Environmental Protection Areas were established, these areas would provide improved habitat areas for native fauna than currently exists.

41 For the above reasons, I find that the variation to the minimum lot size development standard is inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. In this case, the applicant has not satisfied the Court that strict compliance with the development standard is unreasonable and unnecessary and it follows and that the SEPP 1 objection is not well founded.

42 Accordingly, the appeal must fail.

43 I have addressed the other issues relating to existing flora and fauna and the impact on the existing character of area in the consideration of the SEPP 1 objection.

Orders

44 The orders of the Court are:

1) The appeal is dismissed.
2) DA No N0171/04 for the subdivision of the property at 45 Riverview Rd, Avalon into two lots is refused.
3) The exhibits are returned.
____________
G T Brown
Commissioner of the Court