Morgan v Gosford City Council

[2007] NSWLEC 385

Land and Environment Court

of New South Wales

CITATION:

Morgan v Gosford City Council [2007] NSWLEC 385

PARTIES:

APPLICANT
Frederick Arnold Morgan

RESPONDENT
Gosford City Council

FILE NUMBER(S):

10116 of 2007

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- the proposed lots are below the minimum area permitted for medium density development, the zoning is for medium density development, subdivision would permit only single detached houses and not allow the objectives of the zone to be achieved.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Gosford Planning Scheme Ordinance

DATES OF HEARING:

23/05/2007

EX TEMPORE JUDGMENT DATE:

23 May 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr F. A. Morgan, litigant in person

RESPONDENT
Mr R. Byrd, solicitor
of P J Donnellan and Co.

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

23 May 2007

10116 of 2007 Frederick Arnold Morgan v Gosford City Council

JUDGMENT

1 This is a Class 1 Appeal No. 10116 of 2007 between Frederick Arnold Morgan and Gosford City Council in regard to the refusal of DA 29969/2006 for a subdivision of No. 28 Akora Road, Wyoming.

2 The proposal involves the subdivision of the subject property into two lots. Proposed Lot 141 has a frontage to Akora Road and contains the existing dwelling house and has an area of 416.9 sq m and a width of 15.24 m and variable depth between 27.07 to 27.95. Proposed Lot 142 has a site area of 411.5 sq m, a width of 15.24 m and a depth of 27 m.

3 A right of way and easement for services and drainage water is proposed along the northern boundary of the site to benefit the rear allotment, proposed Lot 142.

4 The subject property is Lot 14 section 4 in DP 5562 and has a total area of 828.3 sq m. The site is relatively level with a slope of less than 3% and presently contains the single storey dwelling house, various ancillary structures and several trees. The site is located on the eastern side of Akora Road and is bounded by residential properties to the north, south and east, each containing single dwellings on similar sized lots on the west side in the Sydney-Newcastle railway.

5 The subject land is zoned Residential 2(b) under the Gosford Planning Scheme Ordinance. The surrounding properties in the immediate vicinity of the site are also zoned 2(b) Residential and contain single detached dwelling houses on either side of the subject land and beyond that medium density developments and a motel to the north, one to two storeys in height. A place of public worship is located on zone 5(a) land less than 40 m to the south of the site. Commercial developments are located in Special Business Zone 3(b) located to the south and east of the site in the vicinity of Pemell Street and Pacific Highway. The 2(b) zoned land is located between the Pacific Highway to the east and the main northern railway line on the western side of Akora Road.

6 The following statutory instruments and controls are applicable:

• Environmental Planning and Assessment Act 1979,
• State Environmental Planning Policy No. 71 Coastal Protection,
• Gosford Planning Scheme Ordinance,
• Development Control Plan No. 128,
• Public Notification of Development Applications,
• Development Control Plan No. 159 character,
• Development Control Plan No. 112
• Residential Subdivision
• Development Control Plan 115
• Building and Flood Liable Areas.

7 The development application was lodged in March of 2006. It was exhibited for a period of 14 days and no submissions were received. The application was subsequently refused by council.

8 A review of the determination under s 82A of the Environmental Planning Assessment Act was notified for a period of 14 days. One submission was received from the New South Wales Railcorp advising of potential rail related impacts on future residential development. However, council confirmed the refusal in December 2006.

9 The issues in the appeal are:

1. Whether the proposed development should be refused having regard to the objectives of the zone particulars:

(a) The land is subject if the proposed development is zoned 2(b) medium density under the Gosford Scheme Planning Ordinance.

(b) Cl 10(3) of the GPSO provides that council must not grant consent for development on land within a zone unless it has taken into consideration the objectives of the zone and the consistency of that development within those objectives as well as the objectives of the Local Government Act 1993 relating to ecologically sustainable development.

(c) Objectives of 2(b) zone are contained as stated:

“(a) to make provision for the orderly and economic development of suitable land in appropriate locations for a variety of housing forms at medium density; and

(b) to provide for other users which:

(i) are compatible with medium density residential environment and afford services to residents at a local level; and

(ii) are unlikely to adversely effect residential amenity or place demands on services beyond the level reasonably required for medium density residential users”.


(d) The proposed development would limit the variety and density of housing which could be placed upon the proposed lots.

(e) The proposed development does not encourage the efficient use of land or lot consolidation.

(f) The proposed development is contrary to the general pattern of subdivision in the immediate vicinity for the Residential 2(b) zone.

(g) The proposed development establishes an undesirable precedent for the breaking up of other similar allotments in the immediate vicinity and the fragmentation of zone 2(b) land.

(h) The proposed development undermines the zone objectives and does not promote orderly and economic development of the land.
2 Whether the development should be refused having regard to its failure to comply with DCP 112 Residential Subdivision Particulars:

(a) Cl 3.2.2 of DCP 112 requires a minimum site area of 600 square metres, a minimum width of 18 metres for zone 2(b) land, having a slope of less than 8% and excludes access handles in lot size calculations.

(b) The objectives of DCP 112 are stated in cl 1.6 as follows: “1.6A to ensure that residential land develop for subdivision is done so in an efficient and orderly manner; 1.6B to ensure that all lots created are satisfactorily serviced by infrastructure; 1.6C to maximise development potential of residential land whilst retaining any significant environmental characteristics that may occur on the land; 1.6D to encourage a variety of allotments to cater for different housing needs.

(c) The objective for cl 3 of DCP 112 are stated in cl 3.1 as follows: “3.1.1 to provide sufficient area and dimensions to enable the construction of dwellings, ancillary outbuildings, private open space, vehicle access and parking; 3.1.2 to ensure that allotments and the resulting residential development is in character with the locality and specific land form features of the site such as slope aspect, vegetation and position in relation to adjacent buildings; 3.1.3 to ensure that elements of the site including size, slope, orientation, et cetera provide maximum opportunities for future building design, privacy, orientation, solar access and usable outdoor living space on site; 3.1.4 to encourage a variety of allotments to cater for the different housing needs within the community”.

(d) Excluding access handles proposed Lot 141 is 306.5 square metres and lot 142 is 375.5 sq m.

(e) The proposed development does not promote efficient use of land.

(f) The reduction in lot sizes restricts the ability for future development of the land and compromises future building design opportunities to achieve improved standards of design quality for new development.

(g) The proposed development undermines the objectives of DCP 112 in general and of cl 3 in particular.

10 The respondent’s evidence was heard from Ms D Spithill, senior town planner at council and the applicant’s evidence was heard from Mr S Greville, consultant town planner. The two experts had produced a joint report in Exhibit 6. However, there was no agreement on any point and the report is really two reports approaching the planning issues from different directions.

11 Ms Spithill’s position is essentially a literal interpretation of the applicable numeric controls supported by her understanding of the objectives of the planning instruments and controls that are the reasons for the numerical limits.

12 Mr Greville approaches it on the basis of a lack of impact of the proposal and the apparent shortcomings of the statutes and controls that justify an approval that does not comply with the applicable numerics.

13 The respondent agrees there are no issues in regard to potential physical adverse impacts of the subdivision and that any single detached dwelling on each of the two lots could be designed with acceptable household facilities as referred to in cl 3.1.1 of DCP 112.

14 Much of the evidence focused on the apparent intention for a later development application if the subdivision is approved for a single house, even though Mr Greville expressed the opinion that each of the new lots could support a residential flat - see item 11 of his part of the joint report in exhibit 6.

15 In considering this application I am conscious that it is a development application for a subdivision only. Any subsequent development application for buildings is not part of this appeal.

16 The Gosford Planning Scheme Ordinance does not have a statutory minimum lot size in the zone 2(b). The applicable objective of the zone is:

“(a) To make provision for the orderly and economic development of suitable land in appropriate locations for a variety of housing forms at medium density.”

17 The objectives and permissible uses and prohibited uses of all the different zones come under cl 10 and cl 10 in (3) says:

“The council must not consent for the development on land within a zone unless it has taken into consideration the objectives of the zone and the consistency of that development with those objectives as well as the objectives of the Local Government Act 1993 , relating to ecologically sustainable development”.

18 I note that in zone 2(b) for residential occupation development permitts with consent the following: dual occupancies-attached, dual occupancies-detached, dwelling houses and residential flat buildings, amongst other non residential uses.

19 The applicant says the absence of any definition of medium density in the local environmental plan objective and the permissibility with consent of single detached houses means that the provisions of DCP 112 on minimum area for subdivision do not or should not apply.

20 The planners agree that medium density is development for residential dwellings that are at a density between detached house and high rise apartments.

21 Accepting that opinion on the meaning of the words “medium density”, the overriding purpose of zone 2(b) in the Gosford Planning Scheme Ordinance becomes clear.

22 Ms Spithill said the permissibility of detached houses relates to making allowance for the many existing detached houses in the zone 2(b) that the council expects in time to be replaced with medium density, and to allow for some undersized lots that exist below the minimum 600 sq m and as a result could only have detached houses on them. Also it permits some flexibility in design of more multi-dwelling development to have some detached houses. However it does not allow new allotments beneath the 600 sq m minimum and the 18 m frontage.

23 The opinion has some logic taken with the DCP 112 provision in cl 1.6C:

“To maximise development potential of residential land whilst retaining any signification environmental characteristics that may occur on the land”.

24 The applicant interprets another objective, cl 1.6(d) and cl 3.1.4 that has the same wording,

“To encourage a variety of allotments to cater for differing housing needs”.

25 He says that it means lots below 600 sq m and less than 18 m frontage can be allowed for single houses. This could be seen in a townhouse development called Worrall Grove nearby, which is a multi dwelling development application that has attached and detached houses on small lots.

26 I do not agree with that opinion because the Development Control Plan provides for various lot sizes in cl 3.2.1 and 3.2.2 for land with different slopes and different zonings. That is the variety referred to and the sizes in the DCP are minimum areas.

27 There is no licence to subdivide undersized lots, except perhaps in a multi-dwelling development where the buildings are custom designed to the small lots, and are part of the development application so that all aspects of s 79C of the Environmental Planning and Assessment Act 1979 can be considered.

28 In this proposal Lot 141 will have an area of 416.8 sq m and Lot 142 would have an area of 411.5 sq m. Both lots have a minimum width of 15.24 m. Clause 3.2.2 of DCP 112 states that for the purpose of calculating the minimum lot area of battleaxe or hatchet shaped lots any access handle is excluded. The proposed lot size excluding the access handle for Lot 141 is 306.5 sq m, representing a shortfall of 243.5 sq m or a variation of 49% and for proposed Lot 142 of 375.75 sq m, representing a shortfall of 174.25 sq m or variation of 37%.

29 This is, as I said, only a subdivision application and given the statutory objective of the zone and the outcome of any approval that only a single house could be approved on each lot, there is clear inconsistency with the objective under cl 10(3) of the Gosford Planning Scheme Ordinance.

30 There is further support for this conclusion in Ms Spithill’s other evidence on the Draft Regional Strategy and the fact that without subdivision the subject lot could be considered for four medium sized or perhaps five small attached dwellings or units. Also the lot is the middle lot of three lots that could perhaps be amalgamated if the owners agreed, to achieve zone objective (a) and Development Control Plan objective 1.6(c).

31 Therefore the orders of the Court are:

(1) The appeal is dismissed;
(2) The exhibits are returned to the parties, except Exhibits 3, 4, 6B and C.

___________________

K G Hoffman
Commissioner of the Court
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