Morrissey v Port Stephens Council

[2018] NSWLEC 1282

Land and Environment Court

New South Wales

Medium Neutral Citation:	Morrissey v Port Stephens Council [2018] NSWLEC 1282
Hearing dates:	7 June 2018
Date of orders:	13 June 2018
Decision date:	13 June 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. 16-2016-862-1 for the construction of a shed and the Torrens Title subdivision into two allotments of 111 South Street, Medowie, is refused. 3. The exhibits, other than exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: subdivision of land, inconsistent with the draft amending local environment plan, streetscape character.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195
Category:	Principal judgment
Parties:	Meagan Morrissey (First Applicant) Andrew Morrissey (Second Applicant) Port Stephens Council (Respondent)
Representation:	Counsel: Dr J Smith (Applicants)   Solicitors: A Pickup, Local Government Legal (Respondent)
File Number(s):	2017/383421
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 16-2016-862-1 for the construction of a shed and the Torrens Title subdivision into two allotments (the proposal) of 111 South Street, Medowie (the site) by Port Stephens Council (the Council).

2. The proceedings were set down for mandatory conciliation and arbitration under s 34AA of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was terminated following the evidence of the resident objectors as the parties advised that there was no prospect of reaching an agreement and a hearing was held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.

3. Leave was granted by the Court on 1 June 2018 for the applicant to rely on an amended proposal, which adjusted the position of the proposed boundary between the two lots to increase the frontage of the second lot from 15m to 20m.

Issues

4. The Council’s contentions can be summarised as:

• The proposal is inconsistent with the draft Local Environment Plan (draft LEP) to rezone the land to R5 Large Lot Residential with a minimum site area of 2000m². If the draft LEP is made and the site is zoned R5 Large Lot Residential under the Port Stephens Local Environmental Plan 2013 (LEP 2013), cl 4.2B applies to R5 zoned land at cl 4.2B(2)(c) and prevent the erection of a dwelling house on land on a lot that is less than the minimum lot size, at cl 4.2(3)(a).

• The proposal results in an allotment of a size that would not enable development consistent with the established streetscape character and character of the locality.

• The proposed shed will have a detrimental impact on the established streetscape character.

5. The Council did not press the traffic impacts contention as a ground of refusal.

The site and its context

6. The site is legally identified as Lot 14 DP 1079392.

7. The site is on the northern corner of South Street and Sylvan Avenue, on the northern side of the large roundabout at the intersection of South Street, Sylvan Avenue and Championship Drive, which denotes the entry point to the residential subdivisions in this precinct including the estate known as “Pacific Dunes”.

8. The site is 2361m² and contains a substantial dwelling orientated to South Street.

The proposal

9. The development application the subject of this appeal was lodged on 15 December 2016 and refused by Council on 11 July 2017.

10. The proposal is to subdivide the site into two allotments. Lot 1 is the corner allotment with an area of 1507m² and contains the existing dwelling. Lot 2 is positioned at the rear of the existing site, with a 20m frontage to Sylvan Avenue and an area of 754m².

11. The proposal includes the construction of a shed on the south-western side of the existing dwelling. The shed is 6.859m x 4.955m and 3.06m above the floor of the shed at RL12.2.

Background

12. Under the earlier Port Stephens Local Environment Plan 2000 (LEP 2000), the site was zoned 1c5 Rural Small Holdings with a minimum lot size of 2000m² (exhibit C, f 141).

Pacific Dunes Estate Planning Proposal

13. On 24 April 2012 the Council unanimously adopted a recommendation to forward a planning proposal for the Pacific Dunes Estate to the Department of Planning for gateway determination (exhibit C, tab 1). The planning proposal had been submitted to Council on behalf of Pacific Dunes Estate and included rezoning the site from 1c5 Rural Small Holdings with a minimum site area of 2000m² to 2a Residential “A” zone, to create three allotments.

Precinct map Pacific Dunes Estate

14. The Pacific Dunes Estate Planning Proposal was based on a strategic study for the Pacific Dunes Estate and, despite the site not being part of the Pacific Dunes Estate which is evident from the boundary line of the estate in the above layout, the planning proposal included rezoning the site and the property on the opposite corner of South Street and Sylvan Avenue, 1C Sylvan Avenue, Medowie. The properties surrounding the site and 1C Sylvan Avenue were to be left zoned as 1c5. The strategic study for Pacific Dunes Estate created six lots from the existing two properties, including three lots on the site, as shown in the above layout, presumably as some sort of denser “entry” lots on the northern side of the roundabout to signal the gateway to the Pacific Dunes Estate. The two properties on the northern side of the roundabout were identified in the strategic study as part of the Hillside Precinct, with an average lot area of 750m² and a minimum lot area of 720m² (exhibit C, tab 1). The Hillside Precinct is on the western side of the Pacific Dunes Estate.

15. The applicant entered into a contract to purchase the undeveloped site on 20 March 2013 (exhibit D).

16. LEP 2013 commenced on 22 February 2014 with the site zoned R2 Low Density Residential with a minimum lot size of 450m².

17. On 12 December 2017 the Council voted on a recommendation for an amended proposal to retain the R2 zoning of the site and 1C Sylvan Avenue and to adopt a minimum lot size of 700m² to be consistent with Council’s resolution of 24 April 2012. This motion was lost (exhibit 2, 172).

Draft LEP to rezone the site from R2 to R5 and increase the minimum lot size from 450m² to 2000m²

18. On 9 May 2017 Council commenced the process of rezoning the site and 1C Sylvan Avenue from R2 Low Density Residential with a minimum lot size of 450m² to R5 Large Lot Residential with a minimum lot size of 2000m². The draft LEP is not the direct result of any strategic study or report; it is the result of the Notice of Motion to Council on 9 May 2017. The purpose of the draft LEP is to achieve a consistent zoning minimum lot size development outcome for land on the northern side of South Street and to prevent subdivision into smaller lots (exhibit 2, f 241).

19. The draft LEP (Planning Proposal PP_2017_PORTS_003_00 to amend LEP 2013 to rezone the site from R2 to R5 and increase the minimum lot size from 450m² to 2000m²) received gateway determination from the Department of Planning on 7 August 2018. The determination excluded authorisation for Council to exercise delegation to make the plan (exhibit 2, f 143).

20. The Planning Proposal was reported to Council on 12 December 2017 and Council adopted the proposal as publicly exhibited and resolved to forward the proposal to the Department of Planning with a request that the Minister make the draft LEP on 10 March 2018.

21. The Department of Planning has confirmed in a letter to the General Manager of Port Stephens Council dated 6 June 2018 that the Department will not make a final decision on the changes proposed in the draft LEP until the appeal process concludes (exhibit 5).

Class 4 proceedings 1C Sylvan Avenue, Medowie

22. Class 4 proceedings have been commenced in the Land and Environment Court in relation to Council’s decision in December 2017 to grant consent to a two lot Torrens Title subdivision at 1C Sylvan Avenue, Medowie (proceedings no: 2018/00106036).

Planning framework

23. The site is zoned R2 Low Density Residential pursuant to LEP 2013 and the proposal is permissible with consent pursuant to cl 2.6(1) of LEP 2013. The objectives of the R2 zone are as follows:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To protect and enhance the existing residential amenity and character of the area.

• To ensure that development is carried out in a way that is compatible with the flood risk of the area.

24. ​The minimum lot size for the site is 450m² (Lot Size Map Sheet LSZ_004C LEP 2013) (shown G green on the map extract below).

Extract from the Lot Size Map LEP 2013

25. The site adjoins land zoned R5 Large Lot Residential with a minimum lot size of 2000m² under LEP 2013.

26. The Port Stephens Development Control Plan 2014 (DCP 2014) includes a section D10 for the Pacific Dunes – Medowie which applies to the site as the site is land identified in Figure DQ of DCP 2014 (exhibit 2, f 140). The site is identified as part of the “Hillside Lots Precinct”. The minimum setbacks for the Hillside Precinct at D10.13 -19 of DCP 2014 are a front setback of 9m and 10m for garages, rear setback of 5m and side setbacks of 1.2m.

27. The objective for subdivisions at C1.B of DCP 2014 is to ensure all new lots have a size and shape appropriate to their proposed use.

Public submissions

28. Three resident objectors and three supporters gave evidence on site. The resident objectors were concerned that the proposal is contrary to the established streetscape character of the R5 zone and that it would detrimentally impact on traffic in the locality.

Expert evidence

29. The applicant relied on the expert planning evidence of Mr Jeff Mead and the Council relied on the expert planning evidence of Mr Paul McLean.

Findings

Weight to the draft LEP

30. Section 4.14(1)(a)(ii) of the EPA Act requires that a proposed instrument that has been the subject of public consultation under the EPA Act and has been notified to the consent authority be a matter for consideration in determining a development application. The provisions of the draft LEP are therefore a matter for consideration.

31. I accept the applicant’s submission that the draft LEP is neither absolutely certain nor imminent at this stage, but I do note that the Council clearly intends that the draft LEP be made and whether or not it will be made is a matter for the Minister or his delegate. For this reason, the draft LEP is not determinative. However, the purpose of the draft LEP is entitled to considerable weight because it seeks to preserve the existing character of the locality on the northern side of South Street. Relevantly, Spigelman CJ held the following in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, 199):

Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.

32. The proposal is contrary to the R5 zoning and minimum 2000m² lot size proposed by the draft LEP and a grant of approval would, in a substantial way, undermine the objective of the draft LEP.

Merit issue

33. The Council did not rely solely on the prohibition of the proposal under the draft LEP but also raised a merit issue against the proposal. The Council contends that the proposal would result in an allotment of a size that would not enable development consistent with the established streetscape character and I am satisfied by all of the evidence before me that this contention is made out.

34. The proposal seeks to subdivide the site by maintaining a substantial allotment on the corner site of 1507m² (Lot 1), albeit smaller than the surrounding properties with a minimum lot size of 2000m², and to create a relatively small residential allotment at the rear of the site fronting Sylvan Avenue of 754m² (Lot 2).

35. The proposal does not achieve the planning outcome anticipated by the Pacific Dunes Estate master plan as shown in the Pacific Dunes Estate Planning Proposal layout at [13], because the proposal maintains a large lot and a dwelling commensurate with that large lot on the entry corner fronting the roundabout and creates a much smaller lot at the rear of the site, with a frontage only to Sylvan Avenue. The Pacific Dunes Estate layout anticipated six smaller 720-750m² residential allotments on the northern side of the entry roundabout to the Pacific Dunes Estate and these six residential properties would have, together, established a coherent pocket of relatively smaller residential lots at the entry to the Pacific Dunes Estate, fanning around the northern side of the entry roundabout.

36. The smaller residential Lot 2 does not form a group of smaller residential lots fronting the entry roundabout, as intended by the Pacific Dunes Estate layout. The proposal instead provides a single and isolated smaller residential lot wedged between two large lots; the remaining Lot 1 containing the substantial dwelling at 111 South Street and the adjoining property at 8 Sylvan Avenue, which also contains a substantial dwelling and an outbuilding. The scale of any new dwelling on the smaller residential Lot 2 would be disproportionate and inconsistent with the established character of Sylvan Avenue, because the frontage of Lot 2 is considerably smaller than the frontage of all of the properties in the vicinity of Lot 2, including the existing dwelling on the site which fronts South Street and the dual occupancy properties on the opposite side of Sylvan Avenue.

37. The relationship between the existing dwelling on the site and the proposed boundary between the two lots is compromised, with the angled boundary having to step around the rear hipped roof over the deck. Both resulting allotments in the proposal are less than ideal in configuration because the proposed subdivision clearly postdates the siting and construction of the substantial dwelling on the site. Lot 1 is left with a disproportionately small garden area in the corner of the site and Lot 2 has a compromised wedge area in the western corner.

Conclusion

38. The proposal is inconsistent with the draft LEP to rezone the land to R5 Large Lot Residential with a minimum site area of 2000m².

39. The proposed Torrens Title subdivision of the site would create an anomaly as it would result in a second allotment of a size that would not enable development consistent with the established streetscape character in Sylvan Avenue.

Orders

40. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 16-2016-862-1 for the construction of a shed and the Torrens Title subdivision into two allotments of 111 South Street, Medowie, is refused.

3. The exhibits, other than exhibits 1 and A, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 13 June 2018