Memel Holdings Pty Limited v Pittwater Council (No 3)
[2001] NSWLEC 240
•10/17/2001
Land and Environment Court
of New South Wales
CITATION: Memel Holdings Pty Limited v Pittwater Council (No 3) [2001] NSWLEC 240 PARTIES: APPLICANT:
RESPONDENT:
Memel Holdings Pty Limited
Pittwater CouncilFILE NUMBER(S): 11035 of 1999 CORAM: Bignold J KEY ISSUES: Development Application :- proposed subdivision of land into lots below minimum size prescribed by LEP - objection pursuant to SEPP No 1 - land within Conservation Area under LEP.
LEGISLATION CITED: State Environmental Planning Policy No 1 - Development Standards CASES CITED: Ingham Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68;
Shoalhaven City Council v Lovell (1996) 136 FLR 58DATES OF HEARING: 23-25 May 2001, 19 June 2001 DATE OF JUDGMENT:
10/17/2001LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr P Graham QC
SOLICITORS
Bradfield Scott
Mr D Parry, Barrister
SOLICITORS
Mallesons Stephen Jacques
JUDGMENT:
IN THE LAND AND
Matter No. 11035 of 1999
ENVIRONMENT COURT OF
Coram: Bignold J.
NEW SOUTH WALES
17 October 2001
MEMEL HOLDINGS PTY LIMITED
Applicant
v
PITTWATER COUNCIL (NO. 3)
Respondent
JUDGMENT
Bignold J:
A. INTRODUCTION
1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the Council’s deemed refusal of a development application to subdivide an existing lot known as No 93 Florida Road, Palm Beach (the development site) into two lots (proposed lots 11 and 12) containing areas of 645 m2 and 671 m2 respectively and having frontages to Livistona Lane and Florida Road, respectively. Proposed Lot 11 is vacant land and proposed lot 12 contains an existing dwelling known as “The Moorings” being a heritage item designated under the Pittwater Local Environmental Plan 1993 (the LEP). The development site is one of eight adjacent lots fronting Florida Road comprising a designated Heritage Conservation Area under the LEP.
2. Since each of the proposed lots contains an area which is less than the minimum lot size of 700 m2 prescribed by the LEP, cl 11(2), the development application has been supported by an objection under State Environmental Planning Policy No 1—Development Standards (SEPP No 1). The written objection is detailed in Appendix V of Mr Ingham’s Report (Exhibit AR) to which reference will be hereafter made.
3. However, it should be noted at this point that the proposed development supported by a different objection (again prepared by Mr Ingham) had earlier been the subject of a decision of the Senior Commissioner in the present proceedings, which upheld the appeal and granted conditional development consent to the proposal.
4. The Council’s appeal against the Senior Commissioner’s decision pursuant to the Land and Environment Court Act 1979, s 56A was upheld by Talbot J who set aside the judgment and ordered that the proceedings be remitted for re-hearing: see (2000) 110 LGERA 217.
5. In upholding the appeal, Talbot J concluded that the Senior Commissioner’s “exercise of the dispensing power pursuant to SEPP 1 had miscarried” (p 222) for the reasons earlier stated by his Honour at 221 in the following passage:
As with cl 11 in this case, it has now become a common practice for the objectives of a particular development standard to be identified in the planning instrument. It is not a difficult task to appreciate what the draftsperson’s intentions were when providing for a development standard for subdivision. The words of cl 11(1) are clear and unambiguous.
Even if the Senior Commissioner did not agree in principle with the aims expressed in cl 11(1), he was nevertheless obliged to have regard to them. It was not sufficient in the course of his judgment to coincidentally deal with amenity questions generally, particularly where he has been careful to express his approach to the SEPP 1 objection in such concise terms.
The failure to identify the objectives of the development standard and then to consider whether, in the light of those objectives, it was unreasonable or unnecessary to apply the development standard in the subject case means that the Senior Commissioner fell into legal error on a matter which was fundamental to the ultimate decision.
The successful achievement of his task was further eschewed by explicitly founding his decision to allow the SEPP 1 objection on the basis that no environmental damage is created by what is proposed. As Cripps J observed in Hooker, it is not sufficient merely to point to absence of environmental harm to found an objection.
6. In a subsequent judgment delivered on 25 October 2000 (2000) NSWLEC 227), Talbot J dismissed the Applicant’s Notice of Motion which had sought an order confining the hearing of the remitted proceedings to the question whether the objection under SEPP No 1 to the development standard prescribed by the cl 11(2) of the LEP should or should not be upheld. The reasons for dismissing the Applicant’s Notice of Motion are stated at par 34 to 36 of Talbot J’s judgment:
In my opinion, the consideration of an objection made pursuant to SEPP 1 cannot be considered in isolation from the whole circumstances of the development application. The determination of the question as to whether development consent should be granted must have regard to the aims and objectives of the development standard.
In the present case there is a real prospect that when the matter is referred back to the Senior Commissioner he could reach a different view after considering the SEPP 1 objection in the light of the objectives which were not specifically considered on the last occasion.
Even if the objection is upheld, the development application may nevertheless be determined by refusal of consent notwithstanding the opinion that it is not necessary to strictly comply with the development standard
7. Thereafter, the Council filed a Notice of Motion seeking an order that the hearing of the remitted proceedings be conducted by a Commissioner other than the Senior Commissioner. In the event, this Motion was not determined by the Court and the re-hearing of the remitted proceedings has been conducted by me. On that re-hearing, the parties have tendered most of the evidence (both documentary and oral) that had been received at the original hearing. Additionally, the parties have adduced further evidence (both documentary and oral) including the additional report of Mr Ingham which includes the current objection pursuant to SEPP No 1 now relied upon by the Applicant in support of the development proposal.
8. On the re-hearing of the remitted proceedings, the parties have re-agitated most of the same issues that had been litigated at the original hearing, although much closer attention has been directed to the question of the objection pursuant to SEPP No 1 and to the objectives of the development standard created by cl 11(2) of the LEP, including Mr Ingham’s further articulation of the objection pursuant to SEPP No 1. (It is common ground that the minimum lot size prescribed by cl 11(2) of the LEP is a “development standard” susceptible to the dispensing power conferred by SEPP No 1.)
9. The issues raised on the re-hearing are virtually the same as those raised at the original hearing, which issues substantially reflect the reasons for the Council’s refusal of the development application, as notified to the Applicant after the present appeal had been filed. The issues are as follows:
- 1. Whether the application to create Lot 11 should be approved having regard to clause 32(3) of Pittwater LEP 1993 given:
(a) The desirability of conservation of the general hillside landscape and open vegetation setting of the heritage building on proposed Lot 12; and
(b) The relationship of the proposed lots to the adjoining heritage properties and the conservation area.
2. Whether the application should be approved having regard to the failure to comply with the intent and requirement of Pittwater LEP 1993 that new lots should have a minimum site area of 700m2.
3. Whether the application should be approved having regard to the failure to comply with the intent and requirements of Council’s Interim Subdivision and Development Policy 7.2.49, that any new lot in an environmentally sensitive area should have a site area of not less than 1200m2 and a slope not exceeding 30% in the context of Council’s various adopted policies for landscape management, conservation of species habitat and preservation of the attractive visual character of hillside areas.
4. Whether the application should be approved having regard to the appropriateness of the submitted grounds of the SEPP 1 objection that the 700m2 minimum lot size development standard is unreasonable or unnecessary in circumstances where:
(a) The relatively small size of the 2 proposed lots is incompatible with the prevailing, lot sizes in the immediate vicinity, that the lots adjoin heritage items and are within a conservation area; and
(b) The subdivision is likely to result in the creation of a new lot (Lot 11) with significant building constraints.
5. Whether the application should be approved having regard to the likely significant loss of vegetation which could be expected to occur for the provision of a 6.5m building setback, 200m2 building platform access/manoeuvering/car parking for two cars (not including any visitor parking) and clearing of tall trees obstructing potential ocean views on Lot 11 and, to a lesser extent, on Lot 12 for drainage construction in respect of Lot 11.
7. Whether the application should be approved having regard to the likely significant visual impact of a future dwelling house and its ancillary development within Lot 11 upon the amenity of the occupants of the existing heritage dwelling house, adjoining heritage properties and the conservation area, preservation of the generally vegetated appearance of the hillside from the beach, reserve and surrounding properties which are of high visual quality and tourist recreational significance.
9. Whether the application should be approved having regard to DCP No. 2 – Car parking and E3 – Driveways and Internal Roadways considering that the sole vehicular and pedestrian access to Lot 11 from Livistona Lane would be substandard and undesirable in regard to its width, surface, slope steep road edge fall to the building area, inadequate on street turning, visitor/service vehicle access/parking.
10. Whether a subdivision of the land is a necessary, or appropriate, method to fund the repair, renovation, maintenance and enlargement of the existing heritage 3 bedroomed dwelling house in the circumstances of the case, having regard to the ownership history, land value and other considerations relating to the funds and grants generally available to heritage buildings and the heritage land use provisions of Pittwater LEP 1993.
10. Significantly the last-mentioned issue was not raised by the Council on the re-hearing, although the Applicant’s case has been advanced on the basis that if development consent is granted to the subdivision, the Applicant will accept a condition requiring inter alia the restoration of “The Moorings” building in accordance with the Conservation Management Plan prepared by Mr Scott Robertson (Exhibit L). The relevant Condition (D28) has been drafted as follows:
Compliance with the requirements of the Conservation Management Plan by Robertson and Hindmarsh Pty Ltd, dated 27/9/99, by means of a Deed of Agreement for the repair and on going maintenance of the heritage building and landscaping.
The development of Lot 11 is to be carried out generally in accordance with the recommendations of the Conservation Management Plan by Robertson & Hindmarsh P/L, dated 27/9/99.
11. The first sentence of this Condition imposes the obligation to restore the “Moorings” and the second sentence imposes obligations in respect of the future development of the proposed rear lot (Lot 11) to ensure that that development does not visually detract from the heritage significance of “the Moorings”.
B. THE RELEVANT PLANNING CONTROLS APPLYING TO THE DEVELOPMENT SITE
12. The principal planning controls are contained in the LEP in terms of which the development site is included in Zone No 2(a) (Residential A). Development in that Zone is controlled by cl 9 which specifies in the conventional manner (“land use table”) the purposes for which development (i) may be carried out without development consent; (ii) may be carried out only with development consent; and (iii) is prohibited within the various zones designated by the LEP.
13. Clause 9 is expressed to operate “except as otherwise provided by this Plan”. It is common ground that development for the purposes of “subdivision” and “dwelling-houses” are purposes for which development may be carried out in Zone No 2(a) only with development consent.
14. Division 1 of Part III (“Special Provisions”) of the LEP contains provisions relating to “subdivision of land”. Relevantly cl 11 is in the following terms:
- 11 (1) The aim of this clause is to create more varied allotment sizes, improve residential amenity and enhance the environment in relation to land to which this clause applies.
(2) A person shall not subdivide land within Zone No. 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside, unless each allotment to be created by the subdivision will have an area of not less than 700 square metres within Zone No. 2(a) or 2(b), exclusive of any access corridor.
(3) A person shall not subdivide land within Zone No. 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale, unless –
(a) each allotment with road frontage crated by the subdivision will have an area of not less than 550 square metres within Zone No. 2(a) or 2(b); and
(b) each internal or hatchet shaped allotment created by the subdivision will have an area of not less than 660 square metres, exclusive of any access corridor and the whole of the allotment will be within Zone No. 2(a) or 2(b).
15. It is common ground that cl 11(2) applies to the development site. Accordingly, it requires each allotment of a proposed subdivision to have a minimum area of 700 m2 exclusive of access corridor.
16. Division 8 of Part III of the LEP contains detailed “heritage provisions”.
17. It is common ground that “The Moorings” building is a heritage item and that the development site is included in a heritage conservation area (being the land comprising the “Florida Road Conservation Area” comprising the following eight adjacent properties: No 79 (“Kookaburra”), No 81 (“Florida House”), No 85, No 87, Nos 89-91 (“Tidapa”), No 93 (“The Moorings”), No 95 and No 97 (“Back-O-Moon”)—all the nominated buildings (except for “Tidapa”) are designated as heritage items, being in each case, a dwelling-house. The lots included in the heritage conservation area that do not contain a building which is a designated heritage item in its own right, have been included to ensure that any “infill” development is compatible with the designated heritage items and the heritage conservation area itself.
18. The following clauses of the LEP are relevant to the identified heritage items and heritage conservation areas—
- Protection of heritage items, heritage conservation areas and relics
- 32. (1) The following development may be carried out only with development consent:
(a) demolishing, defacing, damaging or moving a heritage item or a building, work, relic, tree or place within a heritage conservation area; or
(b) altering a heritage item or a building, work or relic within a heritage conservation area by making structural changes to its exterior; or
(c) altering a heritage item or a building, work or relic within a heritage conservation area by making non-structural changes to the detail, fabric, finish or appearance of its exterior, except changes resulting from any maintenance necessary for its ongoing protective care which does not adversely affect its heritage significance; or
(d) moving a relic, or excavating land for the purpose of discovering, exposing or moving a relic; or
(e) erecting a building on, or subdividing, land on which a heritage item is located or which is within a heritage conservation area; or
(f) making structural changes to the interior of a building or work listed in Schedule 9.
(2) Development consent is not required by this clause if the council is of the opinion that the proposed development would not adversely affect the heritage significance of the heritage item or heritage conservation area.
(3) When determining a development application required by this clause, the council must take into consideration the extent to which the carrying out of the proposed development
(4) The council must not grant consent to a development application required by this clause until it has considered a conservation plan that assesses the impact of the proposal on the heritage significance of the item and its setting, or of the heritage conservation area.
(5) In this clause, conservation plan means a document establishing the heritage significance of a heritage item or a heritage conservation area and identifying conservation policies and management mechanisms that are appropriate to enable that significance to be retained.
Development in the vicinity of heritage item, heritage conservation areas, archaeological sites or potential archaeological sites
36. The council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage conservation area, archaeological site or potential archaeological site, and on its sitting, when determining an application for consent to carry out development on land in its vicinity.
Conservation incentives
(a) the proposed use would not adversely affect the heritage significance of the item or heritage conservation area; and
(b) the conservation of the building depends on the granting of the consent.
- (2) When considering an application for consent to erect a building on land on which a heritage item is located or on land within a heritage conservation area, the council may, for the purpose of determining:
(a) the floor space ratio; and
(b) the number of parking spaces to be provided on the site.
- exclude the floor space of the building from its calculation of the floor space of the buildings erected on the land, but only if the council is satisfied that the conservation of the building depends on its making the exclusion.
19. The development site (including “the Moorings” building) is subject to Pittwater Development Control Plan No 15—Heritage Conservation (DCP 15) which came into force on 26 February 1996.
20. DCP 15 applies to “all items and areas of heritage which have been identified within Pittwater Local Environmental Plan 1993”: p 6.
21. DCP 15 provides “controls and guidelines for heritage items to ensure that items of importance in the historical development of the Pittwater area are not destroyed and lost for present and future generations”: p 6.
22. Additionally, the development site is subject to Development Control Plan No LP 4—Ocean Beach Locality Plan (DCPLP4) which applies to lands situate at Palm Beach and Whale Beach. The stated Purpose of DCPLP4 is:
- to conserve and enhance the existing character of the natural and built environment of the locality to which it applies in accordance with local environmental values and the principles of ecologically sustainable development.
23. The stated aims and objectives of DCPLP4 include the following:
· To conserve and where possible enhance the desirable characteristics of the locality as identified in the Character Evaluation Report.
· To ensure that future development within the locality has minimal effect upon the natural topography and environmental attributes of the land.
· To ensure that development shall harmonise with the natural setting and enhance the visual amenity of the area.
· To ensure that the residential amenity of the locality shall be maintained and the locality is a desirable place to live.
24. Part 2 of DCPLP4 dealing with “Character Evaluation” includes the following content under the heading “Role and Function of Locality”.
The Ocean Beach localities are found in two locations within the area, at Palm Beach and Whale Beach. These are the two most northerly beaches on the ocean side of the Barrenjoey Peninsula.
Historically, these areas remained relatively undeveloped until the extension of the vehicular road along the Barrenjoey Peninsula when residential subdivisions began to proliferate. Initially, development was slow, and considered of weekender and holiday cottages typical of the period. Development focused on the beaches and the recreational opportunities they provided. During this period Norfolk Island Pines were planted immediately behind the beach frontage to identify its importance to the communities. These trees were intended to be visually prominent as they signified safe berthing places for passing ships.
During the 1960’s the Barrenjoey Peninsula changed its character from one of weekender properties to permanent habitation, with the environment changing from predominantly natural landscape to one comprising of detached houses of residential character. The most northern beach, Palm Beach, retained much of its weekender character although many of the residents became permanent occupants. However, many of the retreat residences at Whale Beach were developed to the scale of small mansions. At the time, the density of development increased significantly with more houses being constructed on the steeply sloping sites in the backdrop area behind the beaches.
Most houses are now being used for permanent occupancy, resulting in a change in values associated with the properties, (eg privacy considerations are becoming more important). These changes have the ability to affect the character of the area, more so in Whale Beach than in Palm Beach due to its closer accessibility to the city. Accordingly, it is necessary to identify the elements of the built environment which contribute to the character of the area, and in so doing, identify possible building controls which can be implemented to conserve and enhance more desirable characteristics of the locality.
25. Under the heading “Existing and Desired Future Character”, the following content is included:
Historically, the locality comprised mainly of holiday houses with the beach forming the focus for the area. However, as the economic climate has changed, fewer people could afford the luxury of a beach house , and so many properties are now becoming permanent residences.
The houses are now being used for permanent occupancy with different values being placed on the land (ie privacy considerations becoming more important), which inevitably will change the character of the area. This is more evidence in the Whale Beach area where large residences are being built on smaller parcels of land. This results in some undesirable features, such as loss of tree cover, introduction of exotic tree species, and construction of front brick fences, garages and retaining walls immediately adjoining the street frontage.
Development potential still exists within the Palm Beach area, as there are more that a dozen parcels of vacant land, and several homes which may be due for redevelopment as they are constructed of light weight materials such as fibro. Further, there are a number of large parcels of land that may be considered by their owners as suitable for further subdivision. At Whale Beach, very little development potential exists, other than redevelopment of existing residential properties.
The desired future character for the locality is the holiday feel of the area. This can be retained and enhanced by focusing activity and views to the beach, maintaining the pedestrian links thereto, and enhancing the existing tree canopy levels.
26. Part 3 of DCPLP4 contains several “development controls” dealing with matters such as survey plan, designated slip areas, site coverage, side boundary set back and spatial separation, building lines, sharing views, solar access and landscaping etc.
C. THE PROPOSED DEVELOPMENT
27. The development application for the proposed subdivision of the development site was accompanied by a Statement of Environmental Effects prepared by Mr Neil Ingham, Consultant Town Planner and a Heritage Impact Statement prepared by Mr Scott Robertson, Consultant Conservation Architect.
28. The Heritage Conservation Statement referred to, and was expressed to rely upon, a Conservation Management Plan for the “Moorings” prepared by Mr Robertson. (A copy of the Conservation Management Plan was submitted in support of the development application.)
29. The development application was also supported by a Flora and Fauna Assessment prepared by Mr Fanning, Consultant Ecologist and a Geotechnical Stability Assessment prepared by Mr Speechley, Consultant Geotechnical Engineer.
30. The Conservation Management Plan (Exhibit L) was presumably submitted to the Council in order that the Council be placed in a position so that it could comply with the statutory duty imposed on it by cl 32(4) of the LEP. It is necessary to refer at some length to the contents of the Conservation Plan, Management because it essentially has informed the Applicant’s development application and provides the justification for it, in terms of heritage conservation.
31. The Applicant commissioned Mr Robertson to prepare the Plan “in order to assist in the future development and management of the property”: s 1.2.
32. The stated objectives of the Plan (s 1.3) are as follows:
1.3 OBJECTIVES OF THE CONSERVATION MANAGEMENT PLAN
The primary objectives of this Conservation Management Plan are to:
8.4.1 establish the cultural significance of the property, and
8.4.2 formulate appropriate policies for its conservation, and
8.4.3 prepare a schedule of works for repairs and maintenance in the short and medium term, and
8.4.4 indicate areas of the site which could accommodate expansion of the house to accommodate a more full-time occupation of the property.
33. Section 4 of the Plan contains its “Assessment of Significance” which was expressed to be “intended to assist in making decisions on the future conservation and any development of the buildings and the site” (s 4.12).
34. Section 4.4 contains statements of the “cultural significance” of the property. The ensuing assessments of the (i) “historical significance”; (ii) “aesthetic significance”; (iii) “technical (research) significance” and (iv) “social significance” that are ascribed to the property, is in each case “a degree of significance that is rare in the area” (or in some cases in relation to “the State” rather than in relation to “the area”).
35. Section 6 of the Plan which is headed “Constraints” proceeds to detail and assess (i) “constraints arising from the Statement of significance”; (ii) “constraints arising from physical condition”; and (iii) “external constraints”.
36. Included in (i) is the following assessment of constraints arising from the “aesthetic significance” of the property:
6.1.2.2 The building contributes to the townscape and bush setting of this area of Florida Road by its scale, materials, texture and modulation of light through the use of dark-stained timber and stone walls.
The site can be divided into two culturally significant zones based upon the historical use of the site and the subsequent cultural attributes determined by that historical usage:
The first zone comprises the eastern half of the site (ie that part of the site fronting Florida Road) which contains the house, the garage and a landscape of predominantly exotic palm trees. The zone extends behind the house to include the cleared lawn area and is bounded on the western side by a low stone wall which divides the lawn area from the more overgrown and more highly vegetated rear half of the site.
Within the front cultural zone there are distinct areas:
The site in front of the house should be preserved as a landscaped space and the original front fence retained and repaired and the front gate replicated. Relocation of the garage to make it less visibly intrusive and to open up views of the house from the street would enhance the cultural significance of the site.
The area to the south of the house contains a stone path and retaining wall which should be retained. Behind the retaining wall is a lawn area which formerly contained water tanks. This area is suitable for any additions which may be needed to increase the facilities of the house.
The second zone comprises the western half of the site and is characterised by the vegetated, unkempt nature of the garden. Although the vegetation in this half of the site also appears to have been introduced by previous owners/occupiers it provides a vegetated backdrop to the more visibly altered and built-upon front half of the site.
The tree cover on the rear half of the site should be maintained by preservation of the major trees and relocation of the palms within the site if required but without diminishing the appearance of the vegetated backdrop to the house.
37. A copy of figures 18(a) and (b) is annexed hereto and marked “A” and “B” respectively.
38. Under the heading “External Constraints” the assessment includes the following statement:
6.3.1 CLIENT REQUIREMENTS
The original client brief for the project was for the house to be retained, repaired and restored.
In order to achieve this goal the client is seeking to ameliorate the burden placed upon it in the form of Land Tax by seeking a subdivision of the site into two lots.
39. Section 6.4 contains the following “Conclusion to Constraints”:
6.4 CONCLUSION TO CONSTRAINTS
The constraints resulting from the significance of the place and those arising from the condition of the existing house provide parameters for the treatment of the site and fabric of the house.
However, none of these constraints preclude the upgrading of the facilities and accommodation of the existing house by a sensitive addition in the area behind the house as indicated in Figure 18. Also none of these constraints preclude the subdivision of the site and the construction of a sensitive new dwelling on the rear allotment so formed.
40. Section 7 propounds a number of conservation policies “for the conservation of the site and building”.
41. Those policies include policies in respect of (i) the repair and restoration of the “Moorings” (s 7.2); (ii) additions to “the Moorings” building to be located behind the existing building (s 7.3); (iii) subdivision of the site (s 7.4); and (iv) any new house on the proposed rear lot (s 7.5).
42. The policies recommended in respect of the possible subdivision of the property are stated as follows:
8.4 PARTICULAR – SUBDIVISION
The following particular policies and actions are recommended for any proposal to subdivide the site into two allotments:
7.4.1 That any subdivision line between the front and rear halves of the allotment should relate to the different character of the two halves of the site.
7.4.2 That the treed vegetated eastern portion of any proposed rear allotment should be preserved as a visual backdrop and part of the visual curtilage of the existing house.
43. Section 8 of the Plan contains recommendations for “Implementation” of the recommended conservation policies and includes the following passage in respect of any future subdivision of the site:
- 8.4 PARTICULAR – SUBDIVISION
8.4.1 The subdivision line between the front and rear halves of the allotment relate to the line defining the cultural curtilage of
The Moorings. The cultural curtilage is shown on Figure 18 and relates to the front half of the site which contains the existing house, garage, paths, steps and stone walls as well as the cleared portion of the site. The rear half of the site comprises the vegetated backdrop to the front half of the site.
D. ADJUDICATION ON THE ISSUES IN DISPUTE
44. Since it is common ground that the proposed subdivision cannot be approved unless the SEPP No 1 objection is upheld it is appropriate that that objection be first adjudicated upon, and thereafter consideration be given to the planning merits of the proposal (though some of the planning merits also have some relevance to the SEPP No 1 objection).
45. In terms of the seven issues in dispute earlier recited, this means that my adjudication will proceed by separately considering the following issues in the following order—
(i.) Issues 2, 3 and 4 - SEPP No 1 objection
(ii.) Issues 1, 5 and 7- impact of proposal on heritage items;
(iii.) Issue 9 - Access to proposed Lot 11 via Livistona Lane
(i.) The SEPP No 1 objection
46. Before considering the objection, I should note that I have included in this bracket of issues Issue 3 which concerns the Council’s Interim Subdivision and Development Policy 7.2.49 even though it has no direct relevance to the objection which is solely directed to the requirements imposed by cl 11(2) of the LEP.
47. The Council’s “Interim Policy for Subdivision of Lands in Sensitive Areas” was adopted by the Council in 1991 and has apparently “been consistently applied to the area north of Mona Vale Road….” (vide the Report of Mr John Raven to the Council’s Development Unit Meeting held on 2 March 2000 (Exhibit 4) at which the development application was refused).
48. According to the text of the Policy—it is to be applied “until such time as it can be included as either a Draft Local Environmental Plan or an Amendment to a Local Environmental Plan”. Its stated requirements relevantly include the following:
b) A person shall not subdivide land within Zone No. 2(a) if the allotment or allotments intended to be created have a slope in excess or 30% measured between the highest and lowest points on any such allotment(s).
c) A person shall not subdivide land in a sensitive area unless each allotment so created has an area of not less then 1,200 sq. m.
49. It is common ground that the development site qualifies as “land in a sensitive area” within the meaning of the Policy by virtue of its slope exceeding 23 per cent.
50. The impact in the present case of the Council’s Interim Policy lies beyond the scope of the objection to the development standard prescribed by cl 11(2) of the LEP. It is relevant to the determination on the planning merits of the development application: vide the EP&A Act, s 79C.
51. Coming to the objection pursuant to SEPP No 1, as I have earlier noted, Mr Ingham propounded a new objection in the light of Talbot J’s consideration of the Senior Commissioner’s judgment as it related to the Applicant’s original objection pursuant to SEPP No 1.
52. The newly propounded objection is contained in Appendix V of Mr Ingham’s addendum Report (Exhibit AR). Since the written objection comprises eight typed pages, I shall here merely summarise its content.
53. By way of prefatory comment, Mr Ingham notes that whereas in his original SEPP No 1 objection he had accepted that the stated aim of cl 11 of the LEP also expressed the aim or object of the development standard created by cl 11(2), he had reconsidered that assumption and had concluded that this was not “necessarily the case”.
54. He then explains his changed position which is to the effect that the object of the minimum lot size development standard “is to ensure that future development is consistent with the existing character of the locality”. On the basis that this is the objective of the development standard prescribed by cl 11(2) of the LEP, Mr Ingham explains why he concludes that the proposed subdivision is consistent with that objective or aim, namely that in the locality the existing character reflects a wide range of lot sizes. More particularly:
(i.) In the immediate vicinity of the development site there are 78 lots ranging in size from more than 3,000 m2 down to 480 m2. Of the 78 lots, there are 19 having an area of less than 700 m2, including the two lots immediately adjoining the development site to the north which have sizes of 588 m2 and 696 m2 respectively. Of the 78 lots there are 18 lots having an area in excess of the 1,200 m2 minimum prescribed by the Council’s Interim Subdivision Policy.
(ii.) In the locality, the common feature of the existing character of residential development is the predominance of vegetation over built form, which feature is not purely the result of the creation and maintenance of large sized lots.
(iii.) The proposal will not reduce the “conservation status of the area” by virtue of (a) the proposal to restore the “Moorings” building; and (b) the proposal that any development on the rear land (proposed Lot 11) be not significantly visible from Florida Road, the only public vantage point from which the conservation status can be appreciated.
(iv.) The proposed development would result in a spatial separation between the “Moorings” and the proposed new dwelling on the rear land (Lot 11) consistent with development in the area (particularly that existing development on the subdivided land situate immediately to the north of the development site).
(v.) The future dwelling-house development of the proposed rear lot would be compatible with existing building forms in the area and have an appropriate relationship with Livistona Lane.
55. Additionally (and alternatively lest his revised opinion on the object of the development standard be rejected), Mr Ingham expresses the opinion that the proposed subdivision is consistent with the stated aim of cl 11 of the LEP for the following reasons:
(i.) the size of the proposed lots, being less than the prescribed minimum lot size of 700 m2 increases the opportunity to create more varied lot sizes;
(ii.) the proposed subdivision will improve residential amenity and enhance the environment by virtue of the following:
· it will result in the restoration of an item of environmental heritage and therefore improve the quality of the Florida Road streetscape;
· it will improve the quality of the existing vegetation on the site and the locality through the removal of weeds;
· it will assist in improving services and facilities in the area through Section 94 contributions;
· it will improve infrastructure through the kerbing and guttering and sealing of roads;
· it will increase the population of the area, assisting to make public transport and local shops more viable;
· residential amenity will not be reduced subject to appropriate controls on future development to ensure that buildings maintain an appropriate degree of existing vegetation, sited so that the existing amenity afforded to adjacent properties is generally retained.
56. Having reasoned that the proposed subdivision is consistent—both with the assumed object of the development standard and the stated aim of cl 11(2) of the LEP, Mr Ingham opines that strict compliance with that standard is unreasonable or unnecessary in this case for that reason, in combination with the following additional reasons—
2. There is an absence of environmental harm associated with the proposal.
3. The variation of the standard is minor.
57. In support of reason 2, Mr Ingham’s written objection states the following:
· it retains the majority of existing trees on the site;
· it maintains and improves an existing dwelling-house, reducing the need for additional resources;
· it does not have any impact on significant flora or fauna;
· it will result in benefits to the environment through weed removal;
· it provides an appropriate building area that allows development that will not reduce the environmental or visual quality of the area; and
· it provides an appropriate building area that allows development that will not unreasonably reduce the residential amenity afforded to surrounding properties
58. In support of reason 3, Mr Ingham’s written objection states that the sizes of the proposed lots “are only marginally’ less than 700 m2—proposed Lot 11 being 4 per cent below the prescribed minimum and proposed lot 12 being 8 per cent below the prescribed minimum.
59. In respect of these “minor variations” Mr Ingham opines that the upholding of the objection “will not create a precedent for similar development in the area” for reasons associated with the development site itself and for the reason that in the immediate locality, there are only three other lots, having an area of between 1300 to 1400 m2 of which only the adjoining lot to the south of the development site, has the benefit of dual road access (such as is enjoyed by the development site) but because the development (comprising the dwelling-house “Tidapa”) of that lot (which is included in the Florida Road Conservation Area) is located at the rear of the lot, any subdivision of the lot would be objectionable on account of the likely impact on the conservation status of the lot of any subdivision which would result in the locating of any new dwelling-house on the Florida Road frontage (unlike the present case where the new dwelling would be located on the rear lot and hence be substantially screened from view from Florida Road on account of the existence of “the Moorings” located nearer to the Florida Road frontage).
60. Opposing Mr Ingham’s opinions in respect of the objection pursuant to SEPP No 1 are the opinions of Mr Harvey Sanders, Consultant Town Planner contained in his Report (Exhibit 2). In particular, Mr Sanders rejects Mr Ingham’s revised view of the underlying object of the development standard and disagrees with the reasons advanced by Mr Ingham in support of his alternative opinion based upon the stated aim of cl 11 of the LEP.
61. Mr Sanders makes a preliminary observation that by virtue of the proposed right-of-footway 1 m wide along the northern boundary of proposed lot 12, appurtenant to the rear Lot 11, it would be appropriate in a planning sense to exclude from the area of proposed lot 12 that part so affected, thereby reducing the practical area available to proposed lot 12 to 604 m2. This, I think is a fair comment, based upon a practical understanding of the express exclusion contained in cl 11(2) of the LEP of “any access corridor”. Even though the area of the right of way remains within proposed lot 12 in a legal sense, the area of lot 12 is in a practical and planning sense, corresponding reduced by the area of the right-of-way.
62. Mr Sanders opines that the proposal does not achieve the underlying objectives to provide “improve(d) residential amenity” and “enhance(d) environment” but particularly on account of the fact that “the proposed allotments are not of sufficient size to accommodate two residential dwellings in a manner consistent with the site constraints and the Council’s controls and at the same time, maintain appropriate relationships with the neighbouring residential properties”. He concludes (par 5.11):
- The subdivision of the subject site, will erode existing levels of residential amenity and the environment of the site and the locality
63. The reasons for Mr Sanders’ conclusions which are fully expounded in his written report (Exhibit 2), may be summarised as follows:
(i.) There are a number of physical constraints affecting any residential development of the proposed rear lot (Lot 11) including (a) its steep slope (38 per cent); (b) the existence of significant on-site vegetation (including that located nearer to “The Moorings” which has landscape heritage significance for the building; and (c) access (vehicular and pedestrian) difficulties. Added to these physical constraints are the planning constraints on development imposed by DCP LP4. In combination, these identified constraints significantly reduce the likelihood of the ultimate residential development of the two proposed lots achieving the objective of an improved residential amenity and an enhanced environment.
(ii.) Any future development of the rear lot (Lot 11) would be likely to seek to maximise ocean views by the removal or reduction of the existing vegetation, including the heritage significant vegetation that provides the visible landscape backdrop to “The Moorings”.
(iii.) The Conservation Management Plan prepared by Mr Robertson is flawed, in planning terms, inasmuch as it severs from the curtilage to “The Moorings” the significant landscape backdrop by including that section of the development site within the proposed rear lot (Lot 11) and thereby inevitably places at risk the preservation of that landscape backdrop to “The Moorings” because its future is in the control of the owner of Lot 11 whose likely interests to maximise ocean views will be in conflict with the preservation of the landscape backdrop for the benefit of “The Moorings”.
(iv.) The proposed right-of-way for pedestrian access along the northern boundary of proposed lot 12 appurtenant to the rear Lot 11 will involve the removal of significant vegetation by the need for the provision of a pathway and stairway (involving an overall rise in land levels of some 24 m from the Florida Road frontage to the rear of proposed Lot 11) and will involve a significant invasion of privacy of “The Moorings” development and especially the open spaces located to the front and rear of “The Moorings”.
(v.) In respect of any residential development of the rear Lot 11, there is a potential for invasion of privacy of the adjoining heritage item “Back O’Moon” by virtue of the proximity to the side boundary of elevated deck(s) providing vantage places for scenic ocean views.
(vi.) Upon analysis of the existing subdivision patterns in the vicinity of the development site, only 19 of 78 lots were less than 700 m2 in area. Of these 19 lots, six appeared to have been created in the original subdivision and the other 13 were generally the result of re-subdivision of existing lots in the form of battle-axe shaped lots. Accordingly, undersized lots were the exception, not the norm. Moreover, if attention be focused upon the Florida Road Conservation Area, of the eight properties forming that area, all lots except for the land situate immediately north of the development site (which had been subdivided pursuant to Council approval granted in 1951) had land sizes in excess of 1,000 m2. It follows from these analyses that the proposal is inconsistent with the prevailing subdivision patterns both in respect of the wider area (comprising 78 lots) in the vicinity of the development site and the Florida Road Conservation Area.
64. In addition to his conclusion that the proposed subdivision did not fulfil the underlying objectives of the development standard created by cl 11(2) of the LEP, Mr Sanders expressed the opinion that it was not possible to determine the proposal’s impact on the heritage significance of the development site because of the lack of certainty concerning the future residential development of the proposed rear lot (Lot 11). For this reason, he was of the opinion that a subdivision proposal should not be considered independently of a development application for the erection of a new dwelling on the proposed rear lot. He considered such a joint or concurrent development proposal was necessary in order that there be a proper assessment of the heritage impact of such development conformably to cl 32(3) to cl 32(5) of the LEP.
65. The Applicant rejects this additional opinion by relying upon the terms of the Conservation Management Plan, both in respect of the restoration of “The Moorings” and more particularly, the parameters or criteria established for any future residential development of the proposed rear Lot 11.
66. Additionally, the Applicant points out that there is nothing in cl 32 that compels the submission of a joint or concurrent development application for the subdivision of the land and for a new residence to be erected on the proposed rear Lot 11.
67. Whereas I accept the Applicant’s submission that there is no legal compulsion for there to be a concurrent development application for the subdivision of the development site and for the erection of a residence on the rear lot, there is much practical good sense in Mr Sanders’ suggestion. Moreover, it cannot be denied that the question of the future residential development of the proposed rear lot featured most prominently in the case, having been placed fairly and squarely “on the agenda” by the express terms of the Conservation Management Plan, the relevant parts of which, as I have earlier indicated, are to be given obligatory force by virtue of the imposition of the proposed Condition 28.
68. It is not uncommon in the context of consideration of a development application for the subdivision of land for consideration to be given to the question of the future development of the subdivided lots: see Ingham Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68 and Shoalhaven City Council v Lovell (1996) 136 FLR 58.
69. In the present case, the Applicant has sought to show principally by its evidence from Mr Robertson of indicative new dwelling schemes for the rear lot, that such new development is achievable within the physical and planning constraints of the development site and within the parameters or criteria specified for such development by the Conservation Management Plan.
70. Whereas such evidence may be accepted as being sufficient for present purposes (ie for the determination of the proposal for the subdivision of the development site into two lots), two resultant facts pose some conflict inter se, namely—
(i.) the rear lot is likely to be sold without there being in existence any development consent for a new dwelling (which consent is likely to be sought by the purchaser for the dwelling of his or her choice), but subject to the existence of condition 28 imposed on the grant of development consent for the subdivision of the development site; and
(ii.) development consent will be required before any new dwelling may be erected on the rear land conformably to the requirements of the LEP.
71. The conflict is simply this—to what extent will condition 28 constrain the type and nature of any new dwelling proposal on the rear lot for which development consent would be necessary. An allied question concerns the operation of cl 32(4) of the LEP—to what extent will the Conservation Management Plan be relied upon in fulfilment of the obligation imposed upon the Council “to consider a conservation plan that assesses the impact of the proposal on the heritage significance of the item and its setting, or of the heritage conservation area” (my emphasis).
72. Since the statutory obligation attaches to the “proposal”, it would appear that a further conservation plan would be required in respect of the precise development proposal, the subject of the future development application. If this is so, the question arises as to whether any future conservation plan may be materially different from the present Conservation Management Plan, and if so, what is the continuing and future value of that Plan.
73. A related problem arises as to the extent to which the obligations created by Condition 28 (imposed upon the grant of development consent for the subdivision of the development site) would be binding upon a future developer of the rear lot. By its own force (and the force of the EP&A Act), the condition would probably not be binding or enforceable. To guarantee a binding and enforceable obligation, this condition would probably need to be translated into a restrictive covenant registered on the title to Lot 11, pursuant to the Conveyancing Act 1919.
74. The foregoing questions highlight the difficulty of seeking to determine at the present time the appropriate form of residential development of the rear lot. That difficulty vindicates the practical wisdom of Mr Sanders’ alternative opinion but without any concomitant legal insistence or compulsion, for that approach to be adopted in the present case.
75. Reverting to Mr Sanders’ primary opinion and conclusion, the Applicant relies not only upon Mr Ingham’s competing opinions, but upon the evidence of Mr Robertson and Mr Staas, each a Heritage/Conservation Architect in respect of the heritage impact of the proposed subdivision. Additionally, the Applicant relies upon the fact that the Council’s Heritage Advisor had raised no objection to the proposed subdivision on heritage grounds, subject to Section 7 of the Conservation Management Plan being incorporated in the conditions of consent.
76. In her file note the Council’s Heritage Advisor added the following comment:
- However should the application be refused on other grounds, in the aim to conserve the heritage item, consideration could be given to additions or dual occupancy development under cl 37 of the LEP. Most importantly any future development must comply with the Conservation Management Plan.
77. The Applicant also relies upon the affidavit evidence of Mr Wade Hewett sworn 15 May 2000 which deposes to the following facts:—
(i.) he is a director of the Applicant which owns the development site;
(ii.) until the past decade he had regularly used the property as a holiday house;
(iii.) he had recently sought relief from land tax and had been informed by the Commissioner of State Revenue that the property had since 1993 been assessed on a reduced value pursuant to the Land Tax Management Act, s 60 and there appeared to be no other legitimate provision allowing for further relief;
(iv.) that rental income received from the property had been steadily reducing over recent years—in 1999 net income was $905;
(v.) he had found it increasingly difficult to maintain the property and was not able to refurbish the property unless the development application proceeded;
(vi.) if development consent were granted, he intended to modernise the heritage item.
78. I interpose in relation to Mr Hewett’s affidavit evidence that it came into existence after the Council had determined the development application, that its contents were not part of the Conservation Management Plan and that it did not form part of Mr Ingham’s written objection pursuant to SEPP No 1—other than for Mr Ingham’s opinions that the proposal would result in the refurbishment of the heritage item (“the Moorings”) and hence the enhancement of the conservation status of the Florida Road Heritage Conservation area.
79. In Mr Ingham’s earlier statement (Exhibit U) that had been tendered at the original hearing before the Senior Commissioner, he had addressed Issue 10 (that I have earlier recited) raised by the Council in those proceedings (but not raised by the Council on the re-hearing) in the following terms:
It is not claimed that the subdivision is appropriate only because it will result in the refurbishment of the existing heritage item. I am of the opinion that the proposed subdivision is appropriate on its merits. This opinion does not rely on the fact that as a consequence of the subdivision, the heritage item would be refurbished.
However, I do believe that it is a matter that can be considered in assessing the impact of the subdivision on the existing heritage item. Whilst it has been indicated that the proposal will have no adverse impacts on the significance of this item, it should also be acknowledged that the subdivision will provide the significant benefit of refurbishing the item, as recommended in the CMP. Due to the estimated cost of the refurbishment works (in the vicinity of $280,000), without subdivision approval, it is far less likely that the building will repaired, particularly if the property remains in the same ownership. A further complicating factor is that even when refurbished, the amount of accommodation is limited and is likely to be required to be increased.
Council’s heritage planner has confirmed that the above situation (ie refurbishment of small historic holiday homes) is a problem generally in the Palm Beach area. In this regard there are no provisions in the LEP which address this problem. Whilst the LEP does include a clause aim to encourage conservation of heritage items, it does not strictly apply to situations such as that detailed in the subject application. As noted, I am of the opinion that the proposed subdivision is appropriate regardless of the refurbishment. However, I would support the attitude that where heritage items will be refurbished as a result of subdivision, that a bonus be provided if the form of the allowance of a variation to the minimum lot site (subject to there being no unreasonable impacts on the heritage item, adjoining properties or the locality in general). This would be consistent with the principles of the conservation incentive clause of the LEP.
80. I have dealt with this matter at some length to show that in the Applicant’s objection pursuant to SEPP No 1 is not founded upon the necessity to dispense with the development standard in order that the heritage significance of “the Moorings” can be enhanced by its restoration to be funded by the proceeds of sale of the proposed subdivided rear lot.
81. The Applicant’s case has properly drawn attention to the fact that if the proposed subdivision is approved, it will generate funds by the sale of the rear lot, which can be devoted to the restoration and refurbishment of “The Moorings”. But this is to focus upon a consequent result (and undoubtedly a beneficial result) of the grant of development consent rather than providing a basis or foundation for upholding the Applicant’s objection pursuant to SEPP No 1, which has been propounded upon bases which do not include the necessity, in terms of heritage conservation, for dispensing with the development standard imposed by cl 11(2) of the LEP.
82. The result is that although the objection pursuant to SEPP No 1 is not founded upon the necessity for dispensing with the development standard for the purpose, or with the object, of providing a source of funding (by virtue of the sale of the rear lot) to attain the restoration and refurbishment of “the Moorings”, that consequence (secured by the Applicant’s willingness to submit to condition 28) is a relevant consideration in assessing the heritage impact of the proposed subdivision in the manner that Mr Ingham legitimately includes it as a factor contributing to his opinion that the proposal “will improve residential amenity” and “enhance the environment”.
83. Having carefully considered all of the evidence, I have concluded that the Applicant’s objection pursuant to SEPP No 1 is not well founded.
84. In so concluding, I have generally preferred Mr Sanders’ opinions to Mr Ingham’s competing opinions. In particular, I have not been satisfied that the proposed subdivision fulfils or satisfies the underlying objective of the development standard imposed by cl 11(2) of the LEP, whether that objective be considered to be (a) that which is essentially related to the stated aim of cl 11 (ie to improve residential amenity and enhance the environment) which accords with Mr Sanders’ understanding of the objective and with Mr Ingham’s alternative (and less preferred view); or (b) to ensure future development is consistent with the existing character of the locality (which is Mr Ingham’s revised and preferable opinion).
85. Whereas I am inclined to the view that the underlying objective of the development standard is essentially related to the stated aim of cl 11 (which I think is the view expressed by Talbot J when upholding the s 56A appeal against the Senior Commissioner’s judgment), I am prepared to additionally consider Mr Ingham’s revised understanding of the underlying objective of the development standard.
86. In respect of the latter understanding, I am firmly of the opinion that the proposed subdivision is not consistent with the existing character of the locality and in particular with the 78 lots in the vicinity of the development site and even more particularly with the eight lots comprising the Florida Road Conservation Area. Each of these reference points clearly demonstrates the overwhelming preponderance of lots having areas in excess of the prescribed minimum size of 700 m2, but generally having areas less than 1,400 m2 sufficient to enable re-subdivision into lots conforming to the prescribed minimum area size.
87. The significance of the existing subdivision pattern (which generally reflects the pattern of the original residential subdivision in Palm Beach) in turn highlights the significance of the development standard prescribing a minimum lot size of 700 m2, namely that the minimum lot size prescribed inevitably means that there is very little capacity for there to be changes to the existing subdivision pattern in the Palm Beach area. There are some limited opportunities for re-subdivision of very large lots as recognised in the DCP-LP4, but generally speaking, the prevailing lot sizes, though significantly larger than the prescribed minimum of 700 m2 are less than would permit re-subdivision creating conformably minimum sized lots. These facts operating in combination, inevitably mean that the existing pattern of residential subdivision in Palm Beach (which was generally created prior to the introduction of town planning controls) is generally settled with little opportunity for re-subdivision (except for very large lots) and the prevailing pattern of the residential subdivision is that lot sizes are generally significantly larger than the prescribed minimum area of 700 m2.
88. The existence of the two smaller lots, located on the northern boundary of the development site, is essentially explained by past history—the subdivision was approved in 1951 (prior to the commencement of relevant town planning controls on residential lot sizes) and it constitutes a result that is clearly inimical to the Florida Road Conservation Area, and the heritage item comprising the dwelling “Back O’ Moon”. It is a result that is extremely unlikely to be replicated in the Conservation Area whilever the heritage provisions of the LEP apply and its historical existence provides no current justification or precedent for a similar result on the development site.
89. Accordingly, I must reject Mr Ingham’s opinion that the proposed subdivision is consistent with the existing character of the locality. In my judgment, the proposal is clearly inconsistent with that character, and the more so in the case of the character of the eight properties comprising the Florida Road Conservation Area.
90. Turning to the alternative understanding of the underlying object of the development standard imposed by cl 11(2) of the LEP, I am of the opinion that the proposal does not fulfil or satisfy that object (ie of improving residential amenity and of enhancing the environment).
91. In so finding, I accept Mr Sanders’ opinions that the proposal would inevitably detract from the residential amenity of the “The Moorings” by virtue of the proposed right-of-way extending along the northern boundary of proposed lot 12 and would seriously compromise and threaten the heritage significant landscape backdrop to The Moorings”. These adverse impacts on the residential amenity of “The Moorings” would not, in my judgment, be adequately compensated by the contingent restoration and refurbishment of “The Moorings”.
92. Likewise, I accept Mr Sanders’ opinions that the physical and planning constraints applying to any development of the rear lot (11) would be likely to detract from residential amenity of that lot (especially in view of the most unsatisfactory pedestrian and vehicular access arrangements for that lot) and from the residential amenity of the adjoining residences “Back O’Moon” (to the immediate north) and “Tidapa” (to the immediate south).
93. At the present time, those two residences, being located at the rear of the respective lots, adjoin the vacant, but highly vegetated, rear section of the development site with the obvious advantages of the absence of any nearby dwelling and the presence of dense vegetation.
94. Both these conditions contribute to the existing residential amenity of those houses and the proposal will involve a significant modification or change to those existing conditions with the inevitable detraction of existing residential amenity enjoyed by these two residences.
95. Just as I have found that the proposal will not “improve residential amenity”, similarly I find for the same or similar reasons that the proposal will not enhance the environment. This is because it will introduce into the area two lots below the prescribed minimum lot size which are out of character with the predominantly residential subdivision character of the area (and more particularly, the Florida Road Conservation Area), and because there will be a significant clearing of vegetation to accommodate any new dwelling on the rear lot and an inevitable threat to the preservation of the heritage significant landscape backdrop to “The Moorings”.
96. In respect of vegetation and tree clearance from the development site, the Applicant’s case which emphasises the fact that many of the trees on the development site (including those that form the landscape backdrop to “The Moorings”) are exempt from the Council’s prevailing Tree Preservation Order (Exhibit K) being designated therein as “Undesirable Plants” has overlooked the fact that cl 32(1)(a) of the LEP requires development consent for the “damaging or moving” of a tree within a heritage conservation area.
97. Accordingly even though many of the trees on the development site are exempt from the Council’s Tree Preservation Order, their existence is protected by the heritage controls in force under cl 32(1) of the LEP.
98. For all the foregoing reasons, I find that the proposal is not consistent with, and does not fulfil or satisfy, the underlying object of the development standard imposed by cl 11(2) of the LEP.
99. In respect of the two additional reasons relied upon by Mr Ingham in support of the objection under SEPP No 1, I find that the proposal does not involve only a “minor variation” of the development standard.
100. For the reasons I have earlier given, it is appropriate to exclude from the area of proposed lot 12 the amount of land along its northern boundary required for the provision of the right of way appurtenant to the rear lot. Whereas the size of the two proposed lots when measured by reference to the prescribed minimum area of 700 m2 may be said to be proximate thereto, the result is different if comparison is made to the size of residential lots in the prevailing character of existing subdivision patterns at Palm Beach (where the lots are generally significantly larger than 700 m2) or to the minimum size of 1200 m2 prescribed by the Council’s Interim Subdivision Policy for Sensitive Lands.
101. Whereas these further comparisons are not directly relevant to the objection or to the development standard, they are relevant matters in the consideration of the planning merits of the proposed subdivision, and they highlight the small size of the proposed lots.
102. The other reason, advanced by Mr Ingham, namely “the absence of environmental harm” by the proposal does not, in my judgment, provide by itself any justification for upholding the objection under SEPP No 1.
103. For all the foregoing reasons, I hold that the Applicant’s objection pursuant to SEPP No 1 that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case is not well founded.
104. It follows from this finding that the development appeal must be dismissed for non-compliance with cl 11(2) of the LEP.
105. In view of this conclusion, I shall deal but briefly with the other disputed issues which to some extent have already been considered in my determination on the Applicant’s objection pursuant to SEPP No 1.
(ii.) Heritage Impact of the Proposal
106. In large measure, these issues have already been considered in the course of my adjudication on the Applicant’s objection pursuant to SEPP No 1.
107. Whereas the case has proceeded on the basis of the Applicant’s unchallenged evidence concerning heritage impact, Mr Sanders’ evidence as a town/environmental planner (and not a heritage/conservation architect/planner) has, I think drawn legitimate attention to three potential adverse heritage impacts which I do not think the Applicant’s heritage experts or the Conservation Management Plan have fully answered. These impacts are—
(i.) The severance from the curtilage of “The Moorings” of the heritage significant landscape backdrop with the attendant risk to the preservation of that backdrop inevitable from the fact that it is contained within the rear lot (11) and its retention may be inimical to the interests of the owner of that lot to maximise magnificent ocean views from the new dwelling;
(ii.) the re-subdivision of the development site violates the integrity of the retention of the original lots comprising the Florida Road Conservation Area (except for the 1951 approved subdivision of the lot occupied by “Back O’Moon”—which subdivision, of course, occurred well before the creation of the Florida Road Conservation Area); and
(iii.) likely privacy intrusion of any new dwelling on the rear Lot 11 into the two residences “Back O’ Moon” and “Tidapa”.
108. In my judgment, each of these potentially adverse heritage impacts raises a significant concern and in combination, that concern intensifies to the point of involving an unacceptable heritage impact, notwithstanding the content of the Conservation Management Plan.
(iii.) Access to Lot 11 via Livistona Lane
109. Again, this issue has been considered in the course of my adjudication on the Applicant’s objection pursuant to SEPP No 1.
110. In my judgment, the proposed access arrangements for Lot 11 are very unsatisfactory.
111. Pedestrian access from Florida Road via the proposed right-of-way along the northern boundary of Lot 12 not only will involve a significant intrusion into the privacy of “The Moorings”, but will require any pedestrian to climb stairs or steps involving an overall elevation change of some 24 metres (ie equivalent to a 7-8 storey building).
112. Vehicular access via Livistona Lane, a public road created in 1937, is similarly unsatisfactory.
113. The rear lot of the development site would involve traversing Livistona Lane for a distance of some 120-140 m from its junction with Palm Beach Road along a carriageway, having a constructed width of between 3.5 m and 5 m and having a gradient near the development site of approximately 18 per cent.
114. At the present time, Livistona Lane (which terminates adjacent to the “Tidapa” property immediately south of the development site) provides an unsatisfactory standard of public road vehicular access for the occupants of four to five dwellings, most of which have street frontages, but no physical access, to Pacific Road.
115. The unsatisfactory nature of the level of service provided by Livistona Lane was emphasised by two existing residents of properties fronting Pacific Road, but solely relying upon vehicular access via Livistona Lane. Their opposition to the proposed subdivision was mainly focussed on the inevitable exacerbation of access arrangements if the rear lot of the development site were developed by a new dwelling as proposed.
116. Although Livistona Lane has a width of some 6 m, its constructed carriageway is much narrower and this constraining condition is compounded by virtue of the existence of stone steps serving a residence in Pacific Road located within the road reserve opposite the development site.
117. It is obvious that emergency vehicles (eg ambulances etc) and garbage collection trucks could not gain ready access along Livistona Lane.
118. Although the Applicant called two consultant traffic engineers who regarded the proposed access arrangements as being satisfactory, I prefer the evidence of Mr Brisby, the Council’s Senior Engineer (Exhibit 7) that the existing arrangements would not provide a satisfactory level of service for a public road (as opposed to a private laneway) without significant upgrading, including the provision of an end turning circle and of passing bays and the provision on proposed Lot 11 of visitor car parking spaces.
119. In my opinion, the unsatisfactory vehicular access arrangement for proposed Lot 11 (coupled with the equally unsatisfactory pedestrian access from Florida Road), militates against the creation of a lot at the rear of the development site.
E. CONCLUSIONS AND ORDERS
120. For all the foregoing reasons I make the following orders:
1. Appeal dismissed.
2. Development consent refused.
3. Exhibits be returned.
4. No order as to costs.
ANNEXURE A
ANNEXURE B
8
1
1