LSR Developments Pty Ltd v Sutherland Shire Council
[2004] NSWLEC 566
•10/07/2004
Land and Environment Court
of New South Wales
CITATION: LSR Developments Pty Ltd v Sutherland Shire Council [2004] NSWLEC 566 PARTIES: APPLICANT
RESPONDENT
LSR Developments Pty Ltd
Sutherland Shire CouncilFILE NUMBER(S): 10698 of 2004 CORAM: Hussey C KEY ISSUES: Development Application :- Community title subdivision comprising 9 lots LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2000CASES CITED: DATES OF HEARING: 06-07/10/2004 EX TEMPORE
JUDGMENT DATE :10/07/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr J B Robson, barrister
SOLICITORS
J Kekatos, Solicitors
Mr R O'Gorman-Hughes, solicitor
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
6 October 2004
10698 of 2004 LSR Developments Pty Ltd v Sutherland Shire Council
JUDGMENT
1 This appeal was lodged against council’s refusal of a development application proposing 10 new residential lots and one community title lot - incorporating a new road and services, at Illawong. This proposal involves the resubdivision of 5 existing lots.
2 However, during the lead into the appeal hearing, further conferencing has been undertaken by the parties resulting in an amended proposal, with reduced density proposing 8 new residential lots and an expanded community lot for a new private road, services and increased area for a bushfire Asset Protection Zone (APZ).
3 Council has accepted this amended plan and now considers that the proposal can be approved by way of consent orders.
The site
4 The subject land is situated on the western side of Old Ferry Road, Illawong below Charlotte Place. It comprises Lot 30 DP 733681, Lot 20 DP 7] 7374, Lot 42 DP 806499, Lot 12 DP 843931 (No. 13-19) Old Fe1T) Road and Lot 12 DP 806499 (no. 43) Old Ferry Road.
5 The combined site area is 11, 280 square metres. The site is irregular in shape and slopes steeply from its apex at the north western comer of the site (RL 59) to Old Ferry Road (RL21.12-26.27). The north western portion of the site above the rock outcrop is relatively flat. The remainder of the site below the rock outcrop is steep, with slopes exceeding 180 in the northern half of the site. The slope at the southern end of the site is more gentle.
6 The site remains as relatively undisturbed bushland, with an extensive rock outcrop running approximately north south across the upper portion of the lot. There are no watercourses running across the site.
7 The site adjoins Old Ferry Road along its eastern border. Between the road carriageway and the property) boundary the road reserve varies in width from 6 to 14 m. The road reserve is steep, with a height variation of 6-9 m between the road carriageway and the property) boundary) Bushland vegetation has been retained along the road reserve.
8 To the south the property includes a private road which is a right of way benefiting no. 45 - 53 Old Ferry Road and would also serve the proposed development. Dwellings are constructed on 47-53 Old Ferry Road. Development consists of single dwellings, generally of2-3 storey appearance.
9 To the west, and located at a higher elevation, the site is adjoined by two storey dwellings with frontage to Charlotte Place. The above mentioned cliffline extends between this development and the dwellings fronting Charlotte Place.
10 The site is designated as bushfire prone land under cl 146 of the Environmental Planning & Assessment Act.
The proposal
11 The amended proposal is for 8 new residential lots which front a new private accessway that is contained with a community title development. The lots now vary in size between 632.7 m sq to 975.2 m.
12 The accessway has a minimum width of 5.5 m and includes passing bays and 4 visitors car parking spaces. It also minimises the cut/fill for the access road, as compared to the original proposal and it incorporates a larger bushfire APZ, which is predominantly within the Community Title Lot 1.
13 The proposal has designated building footprints which are now clear of the surrounding cliff locations.
14 The planning framework is detailed in the comprehensive Statement of Basic Facts, which I have considered. The predominant control is the Sutherland Shire Local Environmental Plan 2000 under which the site is zoned 2(e1) Residential and it is within a Foreshore Scenic Protection Area. As such t he proposal is permissible with consent. The relevant matters for consideration include:
- Clause 19(1) - Objective of Foreshore Scenic and Protection Area - to limit scale of development/protect landscape and visual character of foreshore areas.
- Clause 30(e), (f), (g) consent authority to be satisfied as to retention of existing vegetation/adverse impact on environment addressed/bushfire hazards addressed.
- Clause 32(b)(c)(d) - consent authority to be satisfied no significant adverse effect on wildlife corridors and vegetation links/protection of existing land forms/protection of bushland vegetation of scenic value and retention of landscape.
- Clause 33 - Zoning table.
15 Also of relevance are the development standards for minimum lots sizes contained in cl 37, to which the applicant has dealt with by way of a SEPP 1 objection. There is also the Draft Local Environmental Plan 2004, which has been considered, but has no direct implications for this development.
16 The other relevant controls are:
- DCP Residential Subdivision – 9.1/01 Edition 10
- DCP Dwelling Houses in 2(e) Residential Zones, Kurrnell
17 The conferencing has resulted in a considerable reduction in the original issues. In summary the remaining issues concern:
- (i) Bushfire Risks
- (ii) Access/Safety
- (iii) Impact on the environmental/concerning vegetation impacts and cut and fill;
- (iv) Public interest.
18 In respect of these matters, I note that the amended proposal is more site responsve and has greater regard to the environmental constraints, involving the topography and vegetation cover.
19 As the building footprints are clear of the steeper parts of the land and the APZ is substantially located below these; within the comm. Unity Lot 1 to be managed in the Community Title. This arrangement is acceptable to the experts including the RFC representative – Mr Douglas.
20 I accept these experts conference conclusion that the agreed conditions of consent adequately cover this issue.
21 With regard to the access issue, it appears that the amended layout, with less lots has enabled a more acceptable road alignment and incorporation of passing bays and visitor spaces. This now complies with the DCP provisions and I accept the traffic experts’ conclusion that this issue is satisfactorily resolved.
22 Likewise the reduced number of lots has limited the amount of cut and fill and enables the retention of more vegetation, to an extent acceptable by the council. I rely on this acceptance and do not see any other reason to refuse the application in these grounds.
23 Several objections were lodged against the proposal and they are contained in the council’s bundle, Exhibit 1. The objectors were notified of the hearing of this matter and of council’s adoption of consent orders.
24 The objections generally relate to traffic amenity and safety. However, this has been considered by the traffic experts and I am satisfied to rely on their submissions that the proposed road/accessway system demonstrates a reasonable level of environmental capacity.
25 Other objections relate to the visual impact of the garbage storage area and the letter box structure, considering the combined effect of the proposed 8 new dwellings for the size of the structure. This matter has been further reviewed and acceptable locations noted in the DA Plan and submissions made that this is satisfactory.
26 Based on the details before the Court, I am satisfied to rely on these submissions and accept this is covered by the conditions of consent, with the final design for these structures being part of the Construction Certificate detailing.
27 Accordingly I am satisfied that the objectors’ concerns have been adequately addressed, even though they might prefer an alternative and less dense form of subdivision.
28 In the ultimate I am satisfied the proposal demonstrates reasonably compliance with the controls and I accept that the SEPP 1 objection to the minimum lot size should be allowed in this case, because strict compliance is unnecessary and unreasonable.
29 The orders of the Court are:
1. The appeal is upheld.
2. The SEPP 1 Objection to the minimum lot size prescribed in cl 37 of Sutherland Shire Council’s LEP 2000 is allowed.
4. The exhibits may be returned except for Exhibits F, 1, 7, 8, 9,11 and 12.3. Development consent is granted to DA No. 03/1825 for a community title development comprising 9 lots at Old Ferry Road, Illawong, subject to the conditions in Annexure “A”.
- R Hussey
- rjs/ljr
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