Payne S v Sutherland SC - [2005] NSWLEC 97

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Payne S v Sutherland SC [2005] NSWLEC 97
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Stuart Payne
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):
11376 of 2004

CORAM:
Bly C

KEY ISSUES:
Development Application :- demolition of existing dwelling and subdivision of land into two allotments and the erection of an attached dual occupancy development on the two allotments - character and streetscape - removal of mature trees - subdivision design.

LEGISLATION CITED:
Sutherland Shire Loal Environmental Plan 2000
Development Control Plan for Dual Occupancy Housing
Sutherland Development Control Plan - Landscaping
Draft Sutherland Shire Local Environmental Plan 2004
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 1 - Development Standards

DATES OF HEARING: 17/02/2005

DATE OF JUDGMENT:

03/11/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Maston , barrister
RESPONDENT
Mr R O'Gorman-Hughes, solicitor
of Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

11 March 2005

11376 of 2004 Stuart Payne v Sutherland Shire Council
JUDGMENT

Introduction

1 This appeal relates to Development Application No 04/0290, which is for the demolition of an existing dwelling, the subdivision of the land into two allotments and the erection of an attached dual occupancy development on each of the two new allotments. Each of the dwellings is to have two stories and contain three bedrooms and a double garage.

2 The subject land comprises Lot 32 in DP 565384 and is known as 28 Shell Road Burraneer and has a second frontage to Dunkeld Close. It is rectangular in shape with frontages of 36.7 m to both Shell Road and Dunkeld Close and a depth of 53.4 m with an area of 1944 sq m.

3 Existing allotments in Shell Road in the vicinity of the site have frontages ranging between 14.6 m and 22.8 m. Existing development in the locality is characterised by a mixture of low-density residential development, generally comprising one and two-storey single dwellings of varying ages and architectural styles. Dwellings along Shell Road are mainly two-storey, characterised by landscaped front gardens that combine with an open street scene. There are a number of substantial canopy trees in the street both within allotments and on the adjacent footpath area. Dunkeld Close has a somewhat different character with a narrow carriageway and no adjoining nature strip although there is an extensive strip of parkland on the south side of the carriageway, containing numerous canopy trees.

4 The site is zoned 2(e2) Residential and is within a foreshore scenic protection area under Sutherland Shire Local Environmental Plan 2000 ("LEP 2000"). The proposal is permissible with development consent. Relevant to this application the objectives of the 2(e2) zone are:

A residential environment at a lower-density than the residential 2(e1) zone in an environmentally and visually sensitive locality:
(a) where the scale, amenity and sensitive environmental character of the area is preserved, and
(b) where the streetscape and views to the land from the waterways are characterised by one and two-storey detached residential buildings within a landscape setting, and
(c) which is protected from visually intrusive development, especially when buildings or works are within view of the waterway or on sites which contain significant vegetation or natural features that should be preserved,
(d) …..
(e) where the natural environment is protected from development that would harm the foreshore, escarpment and habitats in the vicinity of waterways.

5 Clause 34 of LEP 2000 requires that all buildings in a residential zone maintain a maximum two-storey appearance by requiring a maximum height of 7.2 m to any point on the building's uppermost ceiling and a maximum of 9 m to the highest point of the roof.

6 Clause 19 of LEP 2000 deals with the foreshore scenic protection areas within the Shire and the principal objective is to:

limit the scale of development and protect the landscape and visual character of foreshore areas of Sutherland Shire.

7 Relevantly clause 32 of LEP 2000 requires that:

Consent must not be granted to residential development unless the consent authority is satisfied that the proposed development will not have a significant adverse effect on:

(d) the protection of bushland vegetation of scenic value and the retention of the unique visual identity of the landscape.

8 Clause 38 of LEP 2000 deals with residential allotment dimensions and requires that in the 2(e2) zone the minimum allotment width and depth are 18 metres and 27 metres respectively and provides that:

The objectives of the allotment dimension requirements are:

(a) to require sufficient allotment width and depth to enable some variations in design for development, and
(b) to ensure sites have adequate width and depth for the arrangement of sufficient side boundary setbacks, efficient driveways, sufficient landscaped areas and satisfactory building form that takes into account the uses made of adjoining properties.

9 The Development Control Plan for Dual Occupancy Housing ("the Dual Occupancy DCP") contains, in clause 3, the following relevant objectives:

10 The Dual Occupancy DCP contains the following objective in relation to residential subdivision:

11 The Dual Occupancy DCP contains the following objectives in relation to siting and scale of development:

12 The dual occupancy DCP requires that existing trees be preserved and the objectives in relation to landscaping and private open space are:

13 The associated control for landscaped area requires that:

Existing trees, bushland and other natural features are to be retained and incorporated into the development proposal.

14 The relevant objectives for streetscape and building design are:

Development that, when viewed from the street, is compatible with the character and scale of any existing buildings to be retained on the site and residential development in the immediate vicinity.

15 The associated streetscape controls are:

New development should present windows in the street elevation, and similar proportions of the building to block width as presented by existing development in the street.

If garages are proposed in front elevation they should be set back beyond the front facade of the building or be suitably screened so as not to visually dominate the street facade.

16 The Sutherland Development Control Plan - Landscape ("the Landscape DCP") is applicable and contains landscape objectives relating to the ecology, existing tree canopy and visual quality. More particularly in terms of environmental protection:

17 In relation to scenic and visual quality the relevant objectives and controls are:

18 Draft Sutherland Shire Local Environmental Plan 2004 ("the draft LEP") would if gazetted prohibit dual occupancy housing on this site, which is to be rezoned to Environmental Housing (Scenic Quality). The draft LEP has been exhibited on two occasions. Following advice from the Department of Infrastructure, Planning and Natural Resources, council resolved to carry out a limited review of the draft LEP and I understand that this review will not affect that part of the plan that will rezone this locality, including the subject site.

19 The resulting changes to the draft LEP and the necessity for re-exhibition effectively means that it has not been exhibited and may not attract any weight at all for the purposes of section 79C of the Environmental Planning and Assessment Act 1979. Despite this I accept that there is an exhibited draft LEP that will, if submitted to the Department and made by the Minister, result in this proposal being prohibited. I have therefore decided that the rezoning of the site is reasonably certain but not imminent. In the circumstances the proposed rezoning should attract some consideration but no determinative weight. In this case, this means that the character of the proposal in the existing streetscape needs to be given very careful consideration.

20 The application was advertised and 22 letters of objection were received from residents in the neighbourhood. Matters of concern raised in these objections include:

The lots resulting from the subdivision are too small and inappropriately proportioned.
The proposed buildings will be too wide and would have an inappropriate character in the streetscape.
The proposed pairing of double garages is an ugly, inappropriate arrangement.
Building setbacks are inadequate.
The density of the proposed development is excessive.
Car lights from exiting vehicles would adversely affect the amenity of houses on the opposite side of the street.
The removal of mature trees is inappropriate.

21 The application was refused for reasons relating to and including: the lots sizes; the objectives of the LEP and the zone; the prohibition in the draft LEP; the provisions of the DCP; impacts on the streetscape and the natural environment; inappropriate subdivision pattern; and public interest.

The evidence

22 On behalf of the respondent Council, evidence was given by Mr G. Hand a council town planner. On behalf of the applicant evidence was given by Mr D Crane a consulting town planner. Evidence was also provided by Mr I English an arborist and Court appointed expert.

23 Whilst on site, resident objector evidence was given by:

Dr S Montgomery of 21 Shell Road.
Mr N Lyon of 19 Shell Road.

24 Particular matters of concern raised by these residents include:

The proposed subdivision would result in allotments that are too small and would have inappropriate proportions.
The development would have an excessive density and would be out of character with the locality especially because of the width of the proposed development and the loss of trees from the site.
Traffic generated by the new development would result in car parking, traffic congestion and car headlight problems at night.

25 Having considered all of the evidence and the submissions of the advocates and having taken the view of the site and its environs I have decided that the following issues are those that require the particular attention of the Court:

The subdivision

26 LEP 2000 relevantly sets a minimum allotment size for the 2 (e2) zone of 900 square metres and both lots, having an area of 971.8 sq m comfortably meet this requirement. Similarly the minimum allotment width requirement of 18 m is also comfortably met, the lot fronting Shell Road having a width of 36.725 m and the lot fronting Dunkeld Close having a width of 36.72 m. However the minimum allotment depth requirement of 27 m is not met. Each lot is to have a depth of 26.235 m along the their eastern side boundaries and 26.7 m along their western side boundaries, resulting in respective deficiencies of 0.765 m and 0.3 m.

27 The non-compliance with the allotment depth development standard has resulted in the applicant providing an objection under State Environmental Planning Policy No 1 - Development Standards ("SEPP 1").

28 Mr Hand was of the opinion that the SEPP 1 objection should not be upheld because the purposes of the standard as set out in cl. 38 of LEP 2000 would not be met. Those requirements are set out above and relate to the creation of lots, which are of sufficient size to enable some variations in design and to facilitate sufficient setbacks, efficient driveways, sufficient landscaped areas and satisfactory building form. He explained that the new lots were not acceptable because they were not consistent with the predominant pattern, size and configurations of existing lots in the locality.

29 Mr hand also explained that as a consequence of the proposed lot configuration the proposed dual occupancy buildings would have a linear emphasis extending over 33 m across each of the two sites. This would be out of character with existing dwelling houses in the surrounding area which is characterised by one and two storey detached residential buildings. A complying subdivision with a north - south configuration could result in a building more responsive to the streetscape.

30 Mr Crane's support for the subdivision is contained within the SEPP 1 objection itself, which acknowledges and responds to the objectives of the development standards and those of the 2(e2) zone. The following principal points are made:

The proposed lots significantly exceed the minimum lot size and width requirements whereas the non-compliances are minimal.
The proposed lots are of sufficient size, width and depth to allow for: appropriate variations in building design; setbacks landscaping and private open space; and efficient driveway access. They are clearly capable of facilitating a design and which is compatible with the streetscape and surrounding existing built form.

31 The approval of the subdivision and the question as to whether the SEPP 1 objection can be upheld should be determined on the basis of the subdivision itself and the form of development that the resulting lots would be capable of sustaining. The acceptability or otherwise of the presently proposed dual occupancy buildings is not determinative of the subdivision application although the design can be considered, if otherwise found to be satisfactory, as an indicator of such acceptability. As I later conclude the proposed dual occupancy buildings would, but for the tree issue warrant approval and this lends some support to subdivision. Similarly I do not accept that the proportions of the site is a reason to reject the subdivision application because this would not prevent a building design in an appropriate setting being produced and which would be consistent with the character with the locality. I do not have a problem with the width of the lots, this being a related aspect of the subdivision. Again the lots are capable of sustaining an appropriate building design in an appropriate setting. The existing house on the site, which presently contributes the character of the locality is one such example.

32 I have been persuaded by the SEPP 1 objection for the reasons contained therein and am satisfied that the objectives and intent of the standard are met by the subdivision proposal. It is clear that an alternate subdivision design could comply with all of the development standards and in other circumstances this could be an argument against the proposal. However in this case because the non-compliance is so small this consideration attracts little weight.

33 I do however comment that because I have decided to refuse the application in relation to tree preservation it may be appropriate to reconsider the subdivision arrangement as presently proposed. That is not to say that the alternate arrangement recommended by Mr Hand must be adopted, rather the proposed Shell Road lot might need to be adjusted to better accommodate the trees. If as a result the Dunkeld Close lot suffers some small additional non-compliance then this could be accommodated in compensation for the protection of the trees.

The trees

34 The proposal requires the removal of four mature canopy trees from the site. Three of these trees (trees 1, 2 and 3) located near the Shell Road frontage were of particular concern to the objectors and Mr Hand. Mr English explained that it is difficult to recommend the retention of tree 1, a large scribbly gum because of its propensity to drop branches arising from continued fungal decay, past lopping and the trees intrinsic ability to drop branches as it continues to mature and decline. Having inspected this tree I accept his evidence that as a result of its moderate to high hazard rating it should be removed.

35 As for trees 2 and 3, a closely spaced pair of scribbly gums about 19 m in height, it was Mr English's opinion that these trees would have a safe and useful life expectancy of between 15 - 40 years. Taking into account the amended landscape proposal and the potential for replacement planting he said that the removal of tree 2:

Is a necessary consequence of the proposal in its current form but the tree is not of such high amenity value that the necessity to remove it should not on its own influence the building location.

36 Mr English had a similar opinion in relation to tree 3 adding that if the tree is to be retained the proposal would require significant modification.

37 Mr Hand referred to the tree protection provisions of LEP 2000 and the DCP’s that, in essence seek the retention and enhancement of existing vegetation especially significant trees. This is to protect the scenic value of localities such as this especially when buildings and works are within view of any waterway. He explained that these trees make a major contribution to the vegetation canopy in the locality and comprise a significant feature of the character of the site as well as being important components of the scenic quality of the Shell Road streetscape. He emphasised that the upper tree canopy is part of the skyline and an important feature in this locality. He did not accept that the proposed landscaping would re-establish the existing character of the site especially in the short term and that newly planted trees would take many years to reach maturity. He was also concerned that this landscaping, having a geometric form, would be uncharacteristic of this area. Instead he argued that the development should be redesigned to accommodate these trees.

38 Like Mr hand, Mr Crane also took into account the vegetation protection objectives of LEP 2000 and the DCP’s and the evidence of Mr English. He concluded that these trees impose an unreasonable constraint on the development of this site. More particularly he explained that the need to relocate the development so that it would be 4.7 – 5 m from the base of the tree (as suggested by Mr English) would be an unreasonable constraint. This would result in a front building setback which is incompatible and inconsistent with the front setbacks of the adjoining dwellings, would severely diminish the private open space yard area available and result in additional privacy and overshadowing impacts to the adjoining properties to the west and within the proposed development.

39 Mr English gave additional evidence on-site and accepted that in the context of maintaining tree canopy the retention of trees 2 and 3 would be preferable and this together with new plantings would, in the long-term, be the optimal result. This would be possible if building site coverage were limited to 20% of the site. However in the alternative he would be satisfied with the proposal, which will introduce a larger number of canopy trees (subject to appropriate species) than presently exists on site. Whilst newly planted trees will take 15 to 20 years to mature, the result would be better than just preserving the existing trees.

40 The provisions in LEP 2000, the dual occupancy DCP and the landscape DCP all make reference to the protection of vegetation in various ways and for various reasons. However a multiplicity of similar provisions may not lead to clarity and certainly do not, by repetition, make essentially the same matter more important. In my opinion and whilst it is necessary to take into account the objectives of these planning controls in relation to tree preservation it is inappropriate to take a short term view on this matter. Nevertheless, I have not been persuaded by the evidence of Mr Crane that the retention of these two trees would represent an unreasonable constraint on the redevelopment of this land.

41 The two trees are situated at the minimum 7.5 m set back requirement (from the frontage) and accepting the 5 m tree protection zone advocated by Mr English this imposes a considerable development constraint on the proposed lot fronting Shell Road. However taking into account the tree protection requirements of LEP 2000 and DCP’s and the associated townscape requirements together with the fact that this proposed lot exceeds the minimum site area requirement I do not accept that the retention of these trees is unreasonable. The attempts to impose two essentially identical symmetrical buildings onto the site is a constraint in itself and as such has not been given any weight in reaching this conclusion. Instead this is a situation where the designer could and should have taken these trees into account rather than assuming they can be removed.

42 These two trees make a significant contribution to the natural streetscape character in this locality notwithstanding that there is no certainty that they can be seen from the waterway. In terms of tree canopy maintenance the retention of these trees together with additional canopy tree plantings is in this context the optimal outcome. It is also achievable.

43 Having considered all of these matters including the tree preservation objectives I am satisfied that the proposed lot fronting Shell Road (or a lot very much like it) would be capable of being developed with an attached dual occupancy development but it would be different to that proposed some allowance may need to be given as to its configuration and development in return for the protection of the trees in relation to, for example, setbacks.

44 I have therefore decided that the removal of the two scribbly gum trees would be contrary to zone objective (d) and as required by cl. 32 of LEP 2000 and therefore consent should not be granted..

The dual occupancy buildings

45 As already noted the dual occupancy buildings are essentially identical particularly in terms of their footprint and presentation to the streets. They each have a central pair of double garages presenting as a single storey element with the two-storey elements to the side.

46 Mr Hand believed that these designs were uncharacteristic of the freestanding dwellings in the locality especially in terms of the building width and the pairs of double garages. It was his opinion that the proposal would comprise a visually intrusive development and would not meet the objectives of the 2(e2) zone in terms of scale, sensitive environmental character and streetscape

47 Mr Crane disagreed arguing that the proposed two storey scale of the dwellings and their front and side setbacks are consistent with that of neighbouring two-storey dwellings and the predominant two-storey scale and built form pattern in the streetscape. The single storey garages provide visual and physical separation between the two-storey bulk and scale of each dwelling thus reflecting the rhythm and pattern of the built form and lot frontages in the street. During the site inspection he pointed out that the streetscape exhibits a variety of building styles, roof forms and external materials and finishes and that the proposed building design would be compatible with these.

48 Having considered these matters whilst inspecting the locality of the site and a number of nearby buildings with similar features I am satisfied that Mr Crane is correct and that the proposed buildings could have been acceptable in the streetscape and in terms of the character of the area, taking into account the architecture of the buildings and the proposed landscape setting. Although I accept that a less formal landscape design would have been preferable.

49 Much concern was expressed in relation to the two pairs of attached double garages. I saw several similar examples of such garages and this enabled me to understand how this design would be likely to appear. Taking into account the proposed detailing and the driveway landscape separation, had I been minded two grant the consent as sought these garage arrangements would have been satisfactory.

Conclusion

50 I am satisfied that the proposed subdivision and the form of the proposed houses would, in principle comprise an efficient use of land. However, because of the failure to retain two significant trees that are likely to survive for many years, the application should not be approved.

51 Therefore the orders of the Court are:

1. The appeal is dismissed.
2. Development Application No 04/0290 for the demolition of an existing dwelling, the subdivision of the land into two allotments and the erection of an attached dual occupancy development at 28 Shell Road, Burraneer is determined by the refusal of consent.
3. Exhibit B is retained.
________________________
T A Bly
Commissioner of the Court
ljr

31/05/2005 - To insert date of judgement in cover sheet - Paragraph(s) cover sheet

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Payne S v Sutherland SC [2005] NSWLEC 97

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CITATION:	Payne S v Sutherland SC [2005] NSWLEC 97 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Stuart Payne RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	11376 of 2004
CORAM:	Bly C
KEY ISSUES:	Development Application :- demolition of existing dwelling and subdivision of land into two allotments and the erection of an attached dual occupancy development on the two allotments - character and streetscape - removal of mature trees - subdivision design.
LEGISLATION CITED:	Sutherland Shire Loal Environmental Plan 2000 Development Control Plan for Dual Occupancy Housing Sutherland Development Control Plan - Landscaping Draft Sutherland Shire Local Environmental Plan 2004 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 1 - Development Standards
DATES OF HEARING:	17/02/2005
DATE OF JUDGMENT:	03/11/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr J Maston , barrister RESPONDENT Mr R O'Gorman-Hughes, solicitor of Sutherland Shire Council