New House 1 Pty Ltd v Maitland City Council - [2005] NSWLEC 248

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
New House 1 Pty Ltd v Maitland City Council [2005] NSWLEC 248

PARTIES:
APPLICANT
New House 1 Pty Ltd
RESPONDENT
Maitland City Council

FILE NUMBER(S):
11446 of 2004

CORAM:
Nott C

KEY ISSUES:
Development Application :- To erect four detached dwellings as small-scale medium density housing - some objectors at the time of purchase of their lots not properly informed of permissible uses in the zone - amendment to DCP 6 prohibits medium density housing on certain lots - costs - council acted reasonably in first refusing the application

LEGISLATION CITED:
Development Control Plan No. 6
Maitland Local Environmental Plan 1993
Environmental Planning and Assessment Act 1979, s97

CASES CITED:
Krivanek v Blue Mountains Council No. 2 (2004) NSWLEC 732

DATES OF HEARING: 3/5/05

EX TEMPORE JUDGMENT DATE:
05/03/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Brockwell, barrister
INSTRUCTED BY
Acroplan Pty Ltd
RESPONDENT
Mr G W Wilson, solicitor
SOLICITORS
Thompson Norrie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

3 May 2005

11446 of 2004 New House 1 Pty Limited v Maitland City Council

JUDGMENT

1 This is an appeal against the council’s refusal of a development application to erect four dwellings at lot 719, DP 1062779, 6 Howe Place, Raworth (near Morpeth).

2 Briefly, the history of the application is that the development application was lodged on 16 June 2004. On 27 July 2004, the council resolved to prepare a draft amendment to Development Control Plan 6, Raworth Residential Subdivision, the effect of which was to make the subject lot, lot 719, to fall within the land described as “lifestyle allotments”.

3 The amendments to DCP 6 were advertised on 10 September 2004, and the council refused the development application on 28 September 2004. On 25 November 2004, the amendments to DCP 6 came into effect.

4 The subject land is zoned residential 2(a) under the Maitland Local Environmental Plan 1993. The main object of this zone is to provide for housing and associated facilities in locations of high amenity and accessibility. Within the clause relating to this zone is a description that reads:

The 2A residential zone is characterised by detached houses. Some small-scale medium density housing development will be scattered throughout the zone. These developments will typically consist of dual occupancies, duplexes, townhouses and villas up to two storeys. Scope is also provided to allow smaller lots and semi-detached houses in specially designed subdivisions.

5 That description refers to medium density housing which has a special definition in the LEP. Medium density housing is defined to mean two or more dwellings on a site where each dwelling has an individual entrance and direct private access to private open space, at natural ground level, for the exclusive use of the occupants of the dwelling and includes semi-detached dwellings, duplexes, villas, terraces, townhouses, cluster housing, integrated housing development, mobile home parks and the like.

6 I have read out the description of the zone given in the LEP, because at the site inspection today it was agreed that I should hear from those residents who wished to put oral evidence before the Court. By consent of the parties I did hear evidence from persons who live in five households adjoining or in the vicinity of the subject land.

7 A number of the residents said that at the time they purchased their properties they were not aware that medium density housing was permissible in the zone. If they were not properly advised at the time of the purchase of their properties, it could be that they may have some action in negligence against their advisers, but I do not encourage necessarily any litigation, because I do not know the circumstances. Whatever they may have been advised, this Court has to take into account that at the time the residents did purchase their lots the zoning did permit some small-scale medium density housing development scattered throughout the zone.

8 One of the purposes of a development control plan is to give greater particularity to the provisions of an LEP, and it seems to me that that was done by DCP 6. One of the aims and objectives of DCP 6 is to ensure that an adequate visual buffer is maintained between the site and Closebourne House, Morpeth House and the Morpeth township. Another objective is to ensure that adequate open space areas in accordance with council’s requirements are reserved in suitable locations.

9 Other provisions of DCP 6 set out a character statement and in part 3 reference is made to constraints. On page 8 of DCP 6 it is stated:

Medium density housing and dual occupancy development is precluded on land defined as “lifestyle allotments”. The development potential of each “lifestyle allotment” is limited to one residential dwelling per allotment. This land is defined on the DCP map.

The intent and philosophy of the “lifestyle allotments” is to soften the appearance of the subdivision on the higher slopes of the estate by providing a less built-out vista and greater landscape opportunities as a consequence of lower density residential development.

10 Although it is not altogether clear when the lifestyle allotment provisions were first inserted in DCP 6, because there have been a number of amendments, it was agreed between the parties that the provisions were first inserted into the DCP between 27 May 1992 and 4 July 2002. At the time the development application was lodged, the subject land was not a lifestyle allotment. However, subsequently the subject land was included within the land being designated lifestyle allotments.

11 As indicated by the passage I read out earlier, the purpose apparently was to soften the appearance of development on the higher slopes of the estate by providing a less built-out vista. The subject land is not on the highest slope in the estate, but it is on a slope, and it is not in a valley.

12 I do not necessarily conclude that the amendment to the DCP was made with the purpose of frustrating the applicant’s development application. As I understand the evidence given at the site, other lots also have been now included as lifestyle allotments and some of those lots are owned by other objectors.

13 The subject land has an area of 2117 sq m. Each proposed dwelling has a floor area exclusive of the garage of 149 sq m. In accordance with DCP22, urban housing may have a floor space ratio of 0.5:1. The proposed development overall has an FSR of 0.28:1. It also complies with other numerical requirements of that DCP.

14 The proposed dwelling houses have large useable open space areas varying from 77 sq m up to 161 sq m. Admittedly, the open space for the proposed dwelling houses is not as large as the open space per dwelling of the couple of adjoining houses that have already been erected on large lots. However, notwithstanding that many of the residents referred to their desire to have large open space areas, I am of the opinion that the proposed development, having regard to the zoning of the subject land and having regard to the time at which the development application was lodged, may reasonably be developed for the proposed low-scale medium density development.

15 I have taken into account in particular that each of the proposed dwellings is single storey, that there is reasonable separation between them and that landscaping will be provided at appropriate locations on the subject land as shown on the first sheet of the plans for which consent is sought, exhibit A. I have given some weight to DCP 6, now that it has come into force, but I have also taken into account the time at which the application was lodged.

16 I have had the benefit of a well-prepared town-planning report by Mr S O’Connor, who with the agreement of the parties became the Court-appointed expert. I agree with the opinions that he has set out in his statement, although I do not necessarily hold to the view that DCP 6 is invalid insofar as it would tend to limit the locations where medium density housing may be carried out within the estate.

17 It is a question of weight to be given to DCP 6 and its provisions, bearing in mind that the DCP cannot prohibit medium density development, but also taking into account that it was the intention of the LEP that the estate would be characterised by detached houses, although some small-scale medium density housing development could be scattered throughout the zone.

18 The approval of the subject application by the Court does not necessarily set a precedent for other development in respect of applications lodged after the amendment to DCP 6 that extended the areas covered by the lifestyle allotment restrictions.

19 I take into account and adopt all that is said in the basic statement of facts filed in the proceedings, which was also adopted by the Court-appointed expert. I should record also that council officers had recommended the granting of consent, although as I previously indicated the council resolved not to adopt that recommendation. It is the council that is charged with responsibility of determining development applications, or delegating that authority to certain officers and it is not the responsibility of a council officer who does not have that delegation to determine an application.

20 It seems to me that the council acted reasonably in making its determination in the first instance, having regard to objections that were lodged and also having regard to the envisaged amendment to DCP 6. The council also acted reasonably in my opinion when, after having received in writing the Court-appointed expert’s report recommending the granting of consent, the council immediately resolved to agree to consent orders.

21 I have inspected the subject land and locality and as regards the heritage items of Closebourne House and Morpeth House, the proposed development will not have any impact on those heritage items. The subject land does not adjoin those properties but is downslope from them and separated from the buildings that comprise those heritage items by a large buffer of trees that were apparently required to be planted on the heritage property as a buffer, as a condition of allowing a subdivision of the subject estate.

22 I have heard submissions on costs and I have had regard to the relevant rule under the Land and Environment Court Rules relating to costs, which is referred to in a decision of the Chief Judge in Krivanex v Blue Mountains Council No 2 [2004] NSWLEC 732.

23 However, as I indicated earlier I consider that the council’s resolution to refuse the application was not unreasonable. The council had regard to objections from local residents and a petition from them. Although I was told by a number of residents they were not aware that the LEP permitted medium density development in the zone 2(a), nevertheless the opposition to the proposed development on their behalf was reasonable because the subject estate is intended to be of high amenity, as set out in one of the objectives of the LEP. That amenity is contributed to by the larger-than-ordinary allotments that are provided in certain parts of the estate.

24 I am of the opinion that the other matters raised by the objectors are not a reason for refusal of the application. In particular there will be more traffic than would be the case if there was only one dwelling house on the subject land, but still the proposed development is a low-scale development. Adequate parking has been provided in accordance with the council’s relevant DCP. Some residents raised an issue about water pressure—that issue is no longer pressed by the council, and the Hunter Water Corporation does not have any special requirements now limiting medium density development in this part of the estate.

25 I am of the opinion that it is appropriate to endorse the request of the parties that development consent be granted by consent. The conditions that will be imposed have been agreed by the parties and one of the conditions has been amended to better protect the amenity of the adjoining property owned by Mr and Mrs W and J Pannaye, who live at the house immediately to the north of the subject land.

26 In terms of s 79C(1) of the Environmental Planning and Assessment Act 1979 the proposed development is acceptable.

27 The orders of the Court are:

1. The appeal be upheld.
2. Development application number DA04-2247 for four villa units at lot 719, DP 1062779, 6 Howe Place, Raworth, is determined by the granting of consent, subject to the conditions in annexure A hereto.
3. The exhibits, other than exhibits A, 2 and 3, may be returned.
4. No order as to costs.

____________
A J Nott
Commissioner of the Court
Ljr/rjs

Appeal No. 11446 of 2004

Annexure “A”
Conditions of Consent
New House 1 Pty Ltd v Maitland City Council
DA 04-2247 MEDIUM DENSITY

COMPLIANCE

1 The proposed development is to be carried out strictly in accordance with the plans being Drawing Nos. 04-072-01, 04-072-02, 04-072-03, 04-072-04, 04-072-05, dated June 2004 (exhibit A) and any amendments to those plans arising through conditions to this consent.

CONTRIBUTIONS/FEES

Reason: The following condition(s) have been applied to ensure that:
i) Where the proposed development results in an increased demand for public amenities and services, payment towards the cost of providing these facilities/services is made in accordance with Councils adopted contributions plan prepared via the provisions of section 94 of the Environmental Planning and Assessment Act, 1979.
ii) Council's administration expenses are met with respect to the processing of the application.

2 A Drainage Plan Assessment fee of $446 for the proposed development, based on Council's current Fees and Charges Schedule, must be paid prior to issue of the Construction Certificate.

3 The payment of a monetary contribution in accordance with Council's policy adopted on the 1st September, 1995 for the Provision of public amenities and services within the Maitland Local Government Area as follows:-

NOTE: The above rates are effective from 1st January 2001, and will be subject to inflation adjustment, calculated as at the date of payment. The method of adjustment shall be based on the Implicit Price Deflator (Total Public Gross Fixed Capital Expenditure) as published by the Australian Bureau of Census and Statistics. The above payment is to be made prior to release of the final plan of survey.

TRAFFIC/ROADS/FOOTPATH

Reason: The following condition(s) have been applied to ensure that the surrounding road system, footpaths, access/egress and internal parking and manoeuvring areas are designed and constructed to a standard adequate to service the proposed development.

4 A Light Duty vehicular footpath crossing shall be constructed as a full width concrete slab in accordance with the design criteria contained in Maitland City Council Standard Drawings SD68, SD77 and SD78. Concrete shall be 125mm thick, reinforced with F72 mesh with 25mm clear cover to the top. Only ready mixed concrete of 28 day compressive strength, not less than 20Mpa shall be used. Finish shall be plain concrete broomed finish unless some other finish has been specified in the Development Application.

5 Barricades and lights are to enclose the whole of the vehicular crossing work area, and are to be maintained for the duration of the work. Adjacent footpath areas are to be kept clear of debris etc. at all times and in a safe condition for pedestrian access.

6 Where concrete has been poured, the works shall be closed to traffic for seven days after the pour. After completion of works, and removal of formwork, the adjacent footpath shall be trimmed or filled along the edges of the works to an even grade of 1 (V) to 4(H) maximum. Concrete surfaces shall be broom finished plain concrete only, unless some other finish has been specified in the Development Application. All edges and dummy joints finished with a 75mm edging tool. The kerb layback and footpath crossing slab shall not be integral, but be separated by a full depth bitumen impregnated joint filling strip.

DRAINAGE & SEDIMENT/EROSION CONTROL

(i) Adequate sediment/erosion control structures are provided to prevent siltation of existing drainage systems and waterways;

(ii) Stormwater internal and external to the proposed development site is controlled to minimise the risk of flooding to upstream and downstream properties; and

(iii) Due regard is given to the development of flood liable land or land in the vicinity of flood liable land.

7 On site stormwater detention must be provided. An amount of 18.8 cubic metres of detention and a permissible site discharge of 28 litres per second is to be provided for the overall development. A practising Engineer or suitably qualified person is to prepare designs that must be submitted and approved by Council prior to the issue of a Construction Certificate. The stormwater detention system is not to be removed or altered without the express permission of Maitland City Council, the system is to be maintained in good working order at all times. The Drainage Plan Assessment fee must be paid prior to issue of the Construction Certificate.

8 Council will conduct quality control inspections during construction of the OSD system in order to assess satisfactory compliance with the approved engineering plans and Council's Subdivision construction standards. The applicant is to notify Council at least 24 hours in advance of inspections required for the abovementioned works. These works are to be completed to Council's satisfaction prior to the issue of an Occupation Certificate or endorsement of the Final Plan of Survey by Council.

Standard General Provisions

Reason: The objectives of the following conditions are to draw to the attention of the applicant and owner their responsibilities to comply with various provisions of the Environmental Planning and Assessment Act, 1979, Environmental Planning and Assessment Regulations, 1994, Local Government Act 1993; Regulations; Building Code of Australia and Local Policies relating to building construction and maintenance.

9 A CONSTRUCTION CERTIFICATE IS TO BE OBTAINED PRIOR TO COMMENCING CONSTRUCTION WORKS.

10 THE APPLICANT IS REQUIRED TO SUBMIT TO COUNCIL NOTICE OF APPOINTMENT OF THE PRINCIPAL CERTIFYING AUTHORITY AT LEAST TWO (2) DAYS PRIOR TO THE COMMENCEMENT OF CONSTRUCTION WORKS.

12 All aspects of the building design shall comply with the applicable performance requirements of the BCA for a Class 1 (a) dwelling so as to achieve and maintain acceptable standards of structural sufficiency, safety (including fire safety), health and amenity for the ongoing benefit of the community. Compliance with the performance requirements can only be achieved by:
a) complying with the deemed to satisfy provisions, or
b) formulating an alternative solution which:
i) complies with the performance requirements, or

ii) is shown to be at least equivalent to the deemed to satisfy provision, or

c) a combination of a) or b).

13. All building work must be carried out in accordance with the provisions of the Building Code of Australia.

14 The completed building is to be setback from boundary alignments as indicated on the approved plans.

15 The owner should note that the issue of development consent does not amount to a release, variation or modification by Council of any covenant applicable to this property and that any action taken by the applicant in accordance with this consent which results in the incurring of any loss or damage by way of breach of the covenant will not be the responsibility of Council.

16 The proposed structure shall not be located on or over any easements on the subject allotment other than as may be expressly permitted and indicated on the approved plans.

17 A copy of the approved plans and specifications and consent shall be kept on the site at all times during construction.

18 The applicant shall consult with Council's Asset Planning & Management Group for all advice concerning works associated with;
a) Footpath crossings
b) Kerb crossings
c) Stormwater outlets
d) Driveway gradients and profiles.

(ii) is satisfied that the licence has complied with the requirements of Part 6 of that Act, or

(ii) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner-builder work in Section 29 of that Act, and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.

(2) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act, 1989, that states that a person is the holder of an insurance policy issued for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that part.

20 All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards and must be properly guarded and protected to prevent them from being dangerous to life or property.

SERVICES & EQUIPMENT

Reason: The objectives of the following conditions are to ensure that adequate inbuilt and external fire protection services are provided to restrict fire growth, facilitate fire safety, prevent fire spreading to adjoining buildings or allotments, to enable safe evacuation of occupants before the environment becomes untenable, to provide services that facilitate safe egress in the event of power failure, to provide early warning and or initiate automatic counter measures and to provide for on-going maintenance of all active services.

21 In a Class 1 dwelling, self-contained smoke alarms must be installed on or near the ceiling between each area containing bedrooms and the remainder of the building, including hallway associated with the bedrooms. These must be connected to mains electrical power supply and have a standby power supply.

SITE CONSIDERATIONS

Reason: The objectives of the following conditions are to provide for a safe and healthy environment for the occupants of the allotment and to maintain an adequate level of safety and cleanliness for the local environment.

Where a retaining wall is planned for this purpose and such wall exceeds 1.0 metres in height at any point from finished ground level, plans and specifications of the construction SHALL BE APPROVED BY COUNCIL BEFORE WORKS COMMENCE. Plans and specifications of retaining walls greater than 1.0 metres in height MUST BE CERTIFIED BY A PRACTICING PROFESSIONAL ENGINEER. Note: The submission of a separate Development Application is not required for a retaining wall associated with this approval and indicated on the approved plans.

23 All building refuse on this building site shall be stored in such a manner so as not to cause a nuisance to adjoining properties.

and

iii) Must, at least seven (7) days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this condition, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. (Includes a public road and any other public place).

ii) Showing the name of the person in charge of the work site and a telephone number at which that person may be contacted during work hours.

Any such sign is to be removed when the work has been completed.

ii) Building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.
26 Approved toilet facilities are to be provided, at or in the vicinity of the work site on which the work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. The provision of toilet facilities in accordance with this Clause must be completed before any other work is commenced.
27 The site is to be cleared of all building refuse and spoil immediately after completion of the building.
28 No building materials, refuse or spoil are to be deposited, or be allowed to remain, on Council's footpath.
29 Soil erosion and sediment controls are to be provided in accordance with Council's policy prior to and during the construction of the proposed development.
30 The applicant is required to notify Council in writing prior to commencing building operations, of any existing damage to kerbing and guttering and/or footpath paving associated with the subject Lot. The absence of such notification signifies that no damage exists and the applicant shall therefore be liable for the cost of the repair of any damage to kerbing and guttering or footpath paving which may be necessary after completion of the building operation.
31 Rubbish generated from the development is to be suitably contained on site at all times. No rubbish shall be stockpiled in a manner which facilitates the rubbish to be blown off site.
ANCILLARY PROVISIONS
Reason: The objectives of the following conditions are to provide more specific requirements for particular points of building or structures and to compliment provisions of related legislation.

32 Termite Control Methods are to be installed or applied to the building and must comply with the provisions of the Building Code of Australia and AS3660.1-1995 in regard to suitability of use. A durable notice, detailing all the methods of termite protection installed, is to be completed and located in or near the meter box or similar location so that it can be readily observed by building owners and occupiers.
33 The applicant shall comply with all conditions within this schedule prior to occupancy of the proposed development.
34 Hours of Work:

Unless otherwise approved by Council in writing, all building work associated with this approval shall be carried out between 7.00am and 6.00pm Monday to Fridays and 7.00am to 5.00pm on Saturdays with no work permitted on Sundays or Public Holidays that may cause offensive noise.

35 Where a lot has frontage to existing concrete foot paving or a cycle path within the footpath, then the location of the proposed vehicular driveway access to the building is to be identified and the concrete paving removed over the width of the access. Access to the site by construction traffic will only be permitted at this location. Any damage to the remainder of the footpaving/cyclepath is to be reinstated by the property owner to Council's satisfaction.

DESIGN

Reason: The following condition(s) have been applied to ensure that:
i) Buildings are constructed in a manner which has regard for the constraints affecting the subject land.
ii) Buildings are constructed of suitable materials with respect to their function and location and that colour schemes and restoration works are appropriate and retain the integrity of existing structures.

36 The provision of external clothes hoists/clothes lines at the rate of 10 lineal metres per unit located and screened.

37 All fencing shall be in accordance with the approved plans.

38 The downpipes from the units being connected to the drainage system.

UTILITY SERVICES

Reason: The following condition(s) have been applied to ensure that adequate utility installations are provided to the site to serve the development and to satisfy the requirements of the various servicing authorities.

39 A Certificate under Section 50 of the Hunter Water Corporatisation Act, 1991, shall be obtained prior to endorsement of the final survey plan. Applications for Section 50 Certificates are to be made direct to the Hunter Water Corporation.

LANDSCAPING

Reason: The following condition(s) have been applied to ensure that adequate provision is made for the landscaping of the site in association with the proposed development, to enhance the external appearance of the development, and to ensure that existing and proposed landscaped areas are appropriately maintained.

40 The landscaped area of the development is to be maintained at all times in accordance with the approved plan 04- 072-01 (part exhibit A).

CARPARKING

Reason: The following condition(s) have been applied to ensure the provision of adequate parking facilities constructed to a suitable standard commensurate with the demand likely to be generated by the proposed development.

41 The provision of on-site parking in accordance with Council's Car Parking Policy adopted 14th October, 1986. For the subject application the required car parking has been assessed at a minimum of 10 spaces.

__________________

A J Nott

Commissioner of the Court

rjs

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Citations

New House 1 Pty Ltd v Maitland City Council [2005] NSWLEC 248

Cases Citing This Decision

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Cases Cited

1

Statutory Material Cited

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Krivanek v Blue Mountains Council (No. 2) [2004] NSWLEC 732

CITATION:	New House 1 Pty Ltd v Maitland City Council [2005] NSWLEC 248
PARTIES:	APPLICANT New House 1 Pty Ltd RESPONDENT Maitland City Council
FILE NUMBER(S):	11446 of 2004
CORAM:	Nott C
KEY ISSUES:	Development Application :- To erect four detached dwellings as small-scale medium density housing - some objectors at the time of purchase of their lots not properly informed of permissible uses in the zone - amendment to DCP 6 prohibits medium density housing on certain lots - costs - council acted reasonably in first refusing the application
LEGISLATION CITED:	Development Control Plan No. 6 Maitland Local Environmental Plan 1993 Environmental Planning and Assessment Act 1979, s97
CASES CITED:	Krivanek v Blue Mountains Council No. 2 (2004) NSWLEC 732
DATES OF HEARING:	3/5/05
EX TEMPORE JUDGMENT DATE:	05/03/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr S Brockwell, barrister INSTRUCTED BY Acroplan Pty Ltd RESPONDENT Mr G W Wilson, solicitor SOLICITORS Thompson Norrie