Mustaca v Ku-ring-gai Council

[2017] NSWLEC 1235

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Mustaca and ors v Ku-ring-gai Council [2017] NSWLEC 1235
Hearing dates:	8-9 May 2017
Date of orders:	11 May 2017
Decision date:	11 May 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1.   The appeal is upheld. 2.   Development Application No. 0102/16 for the re-subdivision of two existing lots into a different configuration of two Torrens Title lots and the retention of the existing dwelling on one lot at 37 Trafalgar Ave, Roseville, is approved, subject to the conditions of consent at Annexure A. 3.   The exhibits, other than exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: re-subdivision of existing lots, undersized lot; heritage conservation area.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Wehbe v Pittwater Council (2007) 156 LGERA 446
Category:	Principal judgment
Parties:	Catherine Mustaca, Rossano Zaurrini, Francesca Mustaca, Berge Nalbandian (Applicant) Ku-ring-gai Municipal Council (Respondent)
Representation:	Counsel: Mr M. Staunton Barrister (Applicant) Dr J Smith Barrister (Respondent)   Solicitors: Thomson Geer Lawyers (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2016/383344
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0102/16 for the re-subdivision of two existing lots into a different configuration of two Torrens Title lots, in order to retain the existing dwelling on a single lot (the proposal) at 37 Trafalgar Ave, Roseville (the site) by Ku-ring-gai Council (the Council).

Issues

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

• The proposal results in an undersized allotment and the written request to vary the standard does not satisfy the provisions of the clause;

• The proposal is inconsistent with the existing subdivision pattern within the heritage conservation area and will have an adverse impact on the heritage significance of the Clanville Conservation Area;

• The proposal results in an unacceptable outcome for the existing building which is contributory to the heritage conservation area.

3. Council’s contentions regarding vehicular access to Lot 42 and stormwater are not pressed.

The site and its context

4. The site is on the northern corner of Trafalgar Avenue and Marjorie Street, Roseville. The existing allotments that comprise the site are orientated north-east to south-west, fronting Trafalgar Avenue.

5. The existing dwelling straddles the two existing lots and fronts Trafalgar Avenue. A two storey addition has been made to the northern end of the original house.

Background and the proposal

6. The proposal is to re-subdivide the site, which consists of two existing lots fronting Trafalgar Street, to create two lots orientated north-west to south-east, Lots 41 and 42, to retain the existing dwelling on Lot 41 by demolishing the rear porch. A future dwelling on Lot 42 would have access from Marjorie Street. Lot 41 is 902.7sqm and Lot 42 is 724sqm with a frontage width of 19.8m.

Planning framework

7. The site is zoned R2 Low Density Residential pursuant to Ku-ring-gai Local Environment Plan 2015 (LEP 2015) and the proposal is permissible with consent. The objectives of the R2 zone, to which regard must be had, are:

• 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 provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

8. The relevant aims of LEP 2015 at cl 1.2(2) are as follows:

(a) to guide the future development of land and the management of environmental, social, economic, heritage and cultural resources within Ku-ring-gai,

(f) to recognize, protect and conserve Ku-ring-gai’s indigenous and non-indigenous cultural heritage,

(l) to facilitate development that complements and enhances amenity for residential uses and public spaces.

9. Development consent is required for subdivision, at cl 2.6 of LEP 2015. The objectives of the minimum subdivision lot size provision, at cl 4.1 of LEP 2015, are:

(a) to ensure that lot sizes are able to accommodate development consistent with relevant development controls and minimise risk to life and property from environmental hazards, including bush fires,

(b) to ensure that lot sizes and dimensions allow development to be sited to protect natural or cultural features including heritage items, remnant vegetation, habitat and waterways, and provide for generous landscaping to support the amenity of adjoining properties and the desired character of the area,

(c) to ensure that subdivision of low density residential sites reflects and reinforces the predominant subdivision pattern of the area.

10. The minimum lot size for the site is 790sqm with a width of at least 18m (along a line 12m from the street frontage).

11. Clause 4.6 Exceptions to development standards is in the following terms:

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out

12. The site is located within the Clanville Conservation Area (Clanville CA, labelled C32 on the heritage map and listed in schedule 5, LEP 2015) and within the vicinity of a heritage item at 26 Trafalgar Avenue, Roseville (item 711, schedule 5, LEP 2015). Clause 5.10 of LEP 2015 requires development consent for the subdivision of land within a heritage conservation area, at (2)(f). The relevant objectives of the heritage conservation clause are to conserve the environmental heritage of Ku-ring-gai and to conserve the heritage significance of heritage conservation areas, including associated fabric, setting and views. It is a pre-condition to the grant of consent that the consent authority considers the effect of the proposed development on the heritage significance of the area concerned, at (4).

13. Ku-ring-gai Development Control Plan 2016 (DCP 2016) includes, at 3A.1 objectives and controls for lot shape, orientation and design, including limiting the impact of new development on cultural significance and ensuring that subdivision patterns, building footprints and siting respect the characteristic street address rhythm and built form spacing of its locality.

14. DCP 2016 includes, at 4A.2 Building setbacks, objective and controls for setbacks, which are relevant to the consideration of the future development of Lot 42 and the proposed 1.5m setback of the existing dwelling to the shared boundary between lots.

Public submissions

15. Four resident objectors provided evidence at the commencement of the hearing on-site and the Court, the parties and their experts viewed the site from the rear yard of 41 Trafalgar Avenue. Their objections to the proposal can be summarised as:

• The proposal will have an adverse impact on the heritage significance of the Clanville CA;

• The proposal is uncharacteristic in the Clanville CA;

• The proposed subdivision will result in an additional dwelling which will have impacts on the privacy and amenity of adjoining properties;

• The resulting second lot is undersized and this exacerbates privacy and amenity impacts on adjoining properties;

• The indicative new dwelling on the second lot submitted as part of the application has a garage at the rear of Lot 42 and this structure will impact on the amenity of the property to the rear because Lot 42 is retained and so the ground level is significantly higher than the private open space of the neighbouring property;

• The indicative new dwelling is shown as a single level dwelling and it is likely that a new dwelling on the second lot will be a two storey dwelling;

• The applicants are developers and have no interest in maintaining the character of Ku-ring-gai.

Expert evidence

16. The applicant relied on the expert evidence of Mr Adam Byrnes (planning) and Mr Robert Staas (heritage). The Council relied on the expert evidence of Mr Jonathan Goodwill (planning) and Ms Leona Goldstein (heritage).

Contravention of the minimum lot size development standard

17. In order for development consent to be granted for a development that contravenes the minimum lot size development standard in LEP 2015, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2015) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2015) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2015).

18. The minimum lot width dimension of 18m is met by the proposal. The minimum lot size of 790sqm is not met by Lot 42, which has an area of 724sqm.

19. The relevant objectives for the minimum lot size development standard, at sub-cl 4.1(1) of LEP 2015 are to ensure the resultant lot is able to accommodate development consistent with the relevant controls; that the development can be sited to protect natural or cultural features and provides for generous landscaping to support the amenity of adjoining properties and the desired character of the area; and reflects and reinforces the predominant subdivision pattern of the area.

20. The applicant’s written requests for the contravention of the minimum lot size development standard in LEP 2015 justifies the non-compliance of the development standard on the following bases:

• Compliance with the minimum lot size development standard could be achieved for both lots by adjusting the shared boundary between the two lots, as the existing site has sufficient area to create two lots with areas greater than 790sqm. This would, however, generate a more irregular allotment and configuration that would be inconsistent with the prevailing subdivision pattern in the area as the majority of existing allotments are rectangular.

• The purpose of the proposal is to retain the existing dwelling which is identified as contributory to the heritage significance of the Clanville CA. It would otherwise be possible to develop the two existing separate lots with two dwellings.

• The proposal results in no significant change to the character of the locality.

21. I am satisfied the proposal is consistent with both the objectives of the zone and the development standard such that strict compliance with the numerical standard for the minimum lot size is unnecessary in the circumstances (Wehbe v Pittwater Council (2007) 156 LGERA 446 [43]) and that there are sufficient environmental planning grounds to justify contravening the minimum lot size development standard. I am satisfied that the applicant’s written request has adequately addressed the required matters.

22. Lot 42 is able to accommodate development consistent with the relevant development controls, with generous landscaping to support the amenity of adjoining properties and the established character of the area, for the following reasons:

• The floor space ratio (FSR) development standard for site of 0.4:1 will ensure that the bulk and scale of future development on the lot is commensurate with its smaller site area and will maintain a reasonable level of suburban amenity for the properties to the side and rear of the lot;

• The width of the lot is consistent with the width of properties to the north-east fronting Marjorie Street;

• A future development appropriately located on the site, with a minimum rear setback of at least 9.15m, complying side setbacks and front setback consistent with the existing setback of adjoining properties, whether one or two storey or a combination of both, will result in a building envelope that maintains the streetscape character and ensures the amenity of neighbouring properties is maintained, and will allow for the generous provision of landscaping.

23. Although it would be possible to re-subdivide the site to create two lots that comply with the minimum lot size development standard in LEP 2017, I accept that it is a better planning outcome to create a subdivision that is consistent with the prevailing subdivision by forming rectangular allotments and to provide the contributory dwelling with the more generous lot, where the landscaped setting of the contributory dwelling can be maintained and an adequate private open space area created on the northern portion of that lot.

24. The proposal reflects and reinforces the predominant subdivision of the area and I accept the oral evidence of Mr Goodwin and Ms Goldstein that the shallower depth of Lot 42 will not be perceptible from the public domain.

25. The addition of a new, skilfully designed, contemporary dwelling on Lot 42 will not detract from the heritage significance of the Clanville CA, just as other neutral buildings within the Clanville CA do not detract from its identified heritage values.

26. The proposal is consistent with the R2 zone objectives because it maintains a low density residential environment and is compatible with the existing environmental and built character of Ku-ring-gai.

Heritage

27. The heritage experts agreed on the following and I accept their agreement:

• The existing dwelling on the site contributes to the collective heritage significance of the Clanville CA;

• The re-subdivision of the site will not diminish the contribution the existing dwelling makes to the heritage significance of the Clanville CA, although Ms Goldstein noted that the curtilage of the contributory dwelling will be reduced and this will impact on its setting;

• Views of the contributory dwelling from the public domain will be retained by the proposal;

• The proposed minor demolition of the later addition of the porch and some of the original roof of the contributory item to maintain a 1.5m setback to the shared boundary is acceptable.

28. I accept and prefer Mr Staas’ evidence that the development of the site in 1926 with a dwelling straddling two lots irreversibly altered the pattern of the subdivision of the block bounded by Trafalgar Avenue, Chelmsford Avenue, Keith Street and Marjorie Street, as the siting of the dwelling on the site was not consistent with the original subdivision pattern. It was the construction of the contributory dwelling that created the anomaly with the subdivision pattern, breaking the established rhythm of development in this location and not the proposal now before the Court. According to Mr Staas, there is a variance with regard to the treatment of the corner properties in the area including the orientation of dwellings and the proposal is entirely sympathetic to the established pattern of development and would have no adverse impact on any heritage significance associated with the area.

29. I accept and prefer Mr Staas’ evidence that it is not necessary to maintain such a large parcel of land in a situation where characteristic development can be achieved by re-subdivision. The proposed curtilage to the contributory dwelling is adequate for a contributory dwelling, as it maintains a generously proportioned corner allotment with substantial and generous landscaping and maintains the views to the principal façades of the dwelling from the public domain.

30. Whether the proposed shared boundary is characterised as a rear boundary or a side boundary for Lot 41, the 1.5m setback to the shared boundary is adequate and consistent with the as the private open space for this lot is situated to the north and associated with the living areas of the dwelling. The position of the existing dwelling on Lot 41 maintains the rhythm of built form in a garden setting consistent with the character of the Clanville CA.

Future development of Lot 42

31. I have not given any weight to the indicative layout proposal for Lot 42 submitted as part of the application for the purpose of considering the likely impacts of the future use of Lot 42. As previously stated, I am satisfied that Lot 42 is able to accommodate development consistent with the relevant development standards and controls, with generous landscaping to maintain the amenity of adjoining properties and the established character of the area. I accept the criticism of the indicative layout by the objector at 41 Trafalgar Avenue that the position of the single garage at the rear of the site will have an unreasonable amenity impact on her property as a result of the retained level of the rear of Lot 42 as part of the former tennis court. In my view, any future application for the development of Lot 42 should maintain the rear setback without any substantial above ground built structures if the filled level of the site is retained. Importantly, an infill building in a heritage conservation area requires skilful design.

Conclusion

32. I am satisfied the proposal is consistent with both the objectives of the zone and the development standard such that strict compliance with the numerical standard for the minimum lot size is unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify contravening the minimum lot size development standard.

33. Having considered the effect of the proposal on the heritage significance of the Clanville CA, I am satisfied that the proposal will not detrimentally impact on that heritage significance.

Orders

34. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 0102/16 for the re-subdivision of two existing lots into a different configuration of two Torrens Title lots and the retention of the existing dwelling on one lot at 37 Trafalgar Ave, Roseville, including minor demolition works, is approved, subject to the conditions of consent at Annexure A.

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

____________

Susan O’Neill

Commissioner of the Court

383344.16 O'Neill (C) (190 KB, pdf)

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Amendments

12 May 2017 - Respondent Counsel name and Solicitor Firm name changed on coversheet.

Decision last updated: 12 May 2017