PJM Group Pty Ltd v The Hills Shire Council

[2022] NSWLEC 1020

Land and Environment Court

New South Wales

Medium Neutral Citation:

PJM Group Pty Ltd v The Hills Shire Council [2022] NSWLEC 1020

Hearing dates:

30 September 2021, final written submission 19 October 2021

Date of orders:

20 January 2022

Decision date:

20 January 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application No. 641/2021/ZA subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – land subdivision – whether title restrictions should be imposed relating to building platform

Legislation Cited:

Conveyancing Act 1919, s 88B

Environmental Planning and Assessment Act 1979, ss 3.42, 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, ss 34AA, 39

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

The Hills Local Environmental Plan 2019, cll 2.6, 2.7, 4.1

Cases Cited:

Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; [2011] NSWCA 308

MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215

Parrott v Kiama [2004] NSWLEC 77

Temwood Holdings Pty Ltd v Western Australian Planning Commission (2002) 25 WAR 484; [2002] WASCA 10

Wenli Wang v North Sydney Council [2018] NSWLEC 122

Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245

Texts Cited:

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

PJM Group Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
T Robertson SC (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Project Lawyers (Applicant)
Hall and Wilcox (Respondent)

File Number(s):

2021/185448

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application 641/2021/ZA (DA) by The Hills Shire Council (Council).

2. The DA proposes to subdivide a single parcel of land known as Lot 101 in DP 528895 and going by the street address of 198 Excelsior Avenue Castle Hill (site), into two parcels. Certain demolition work and civil work would also be involved.

Proceedings

3. The appeal was subject to mandatory conciliation, in accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act). The parties were unable to reach agreement in the time available, as a consequence, and in accordance with s 34AA(2)(b) of the LEC Act, the conciliation conference was terminated, and a hearing was held forthwith.

Key planning controls

4. The site falls within the R2 Low Density Residential Zone under The Hills Local Environmental Plan 2019 (THLEP). The zone objectives 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 maintain the existing low density residential character of the area.

5. Subdivision is permissible under cl 2.6 of THLEP. Clause 4.1 is concerned with minimum subdivision lot sizes. The objective of the clause is as follows:

(a)  to provide for the proper and orderly development of land,

(b)  to prevent fragmentation or isolation of land,

(c)  to ensure that the prevailing character of the surrounding area is maintained.

6. Demolition is permissible under cl 2.7 of THLEP.

7. A 700m2 minimum lot size control applies to the site under cl 4.1, with which the proposal complies.

8. The Hills Development Control Plan 2012 (THDCP) also applies Relevant provisions are dealt with in the evidence.

9. In regard to State Environmental Planning Policy No 55 – Remediation of Land, and in particular cl 7(1), I note and accept the advice of the parties that the land has been continually used for residential purposes for an extended timeframe and as such is not considered to be at risk of contamination. The requirements of cl 7(1) are met.

Site and setting

10. I rely on Council’s Statement of Facts and Contentions (Ex 1) for much of the descriptive material in this and the following section.

11. The site, presently, enjoys two street frontages running between the parallel local roads known as Excelsior Street and George Mobbs Drive. The site’s frontage to Excelsior Avenue is some 27.43m and to George Mobbs Drive is more or less equivalent. The site has an area of approximately 1875m2.

12. Constructed on the site is a dwelling house and an associated structure described in Ex 1 as a “two storey secondary dwelling”. It is further indicated that “(development) consent for this associated structure could not be located in Council’s history files” (Ex 1 p 2). In any event, these structures would be removed.

13. Topographically, the site falls from the western corner to the eastern corner. It is indicated that “the site slopes down towards the north-east by approximately 2.51m towards Excelsior Avenue” (Ex 1 p 2).

14. Development within the locality might be thought to typify its R2 Low Density Residential zone characterised by detached dwellings and secondary dwellings. Ex 1 describes the site as follows:

“The subject site is the only lot which has not yet been subdivided on the block. All other lots on the block have a consistent subdivision pattern.”

The proposal – as amended

15. I note here that in the course of the proceedings, the applicant sought to amend the application from that originally filed with the Court on 28 June 2021. The Court, exercising the functions of Council, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agreed to the applicant’s amendments. I have been subsequently advised that the amending documentation has been uploaded onto the NSW Planning Portal (advice from the applicant filed 8 October 2021). In turn, the application before me is that embodied in the amended documentation, which I reference as follows.

• Demolition Plan - Sheet A02.01 - Issue B - dated 24/09/2021 prepared by Artmade Architects

• Subdivision Plan - Sheet A02.03 - Issue E - dated 24/09/2021 prepared by Artmade Architects

• Civil Plan – Issue B – Dated 23/9/2021 - dated 23 September 2021 prepared by United Consulting

• Arborist Report prepared by NSW Trees dated 23 September 2021.

16. The subdivision plan indicates rectangular shaped lots backing onto one another, referenced as Lot A and Lot B. Lot A would front Excelsior Road and Lot B would front George Mobbs Drive. Lot A would have an area of 1132.25m2 and Lot B would have an area of 742.75m2. As an orientation marker, I mention that Lot A would be north-east of Lot B. Each of the lots would have street frontages of 27.43 (i.e. as existing now for the subject parcel). Lot B would have side boundary dimensions of 27.27m along the north-western boundary, and 27.00m along the south-eastern boundary. Lot A would have a north-western side boundary dimension of 41.28m and a south-eastern side boundary dimension of 41.27m.

Issues

17. This appeal is concerned principally with the question of whether conditions should be imposed on any consent to the proposed subdivision requiring specified restrictions to be registered on future land titles. The title restrictions would be imposed under s 88B of the Conveyancing Act 1919, and would come more particularly into play in the course of the issue of the required subdivision certificate, essential to the creation of the new land titles for proposed Lots A and B. The title restrictions are described in Council’s proposed Condition 43. Below, I reproduce Condition 43 as proposed in Annexure A to Council’s closing written submissions filed on 14 October 2021 (CCS)).

“43. Final Plan and Section 88B Instrument

The final plan and Section 88B Instrument must provide for the following. Council’s standard recitals must be used.

(a) Restriction/ Covenant – Onsite Stormwater Detention

Lot A must be burdened with a restriction and a positive covenant using the “onsite stormwater detention systems” terms included in the standard recitals.

(b) Restriction – Front Building Setback (Residential)

All residential lots must be burdened with a restriction that refers to a primary frontage building setback of 10m using the “front building setback” terms included in the standard recitals. For the sake of abundant clarity the required wording is included here.

“No dwelling house or other structure shall be constructed on the lot(s) hereby burdened that is setback less than 10m metres from the boundary with the primary road frontage complying with the requirements of The Hills Shire Council.”

(c) Restriction – Approved Dwelling Footprint

Lot B must be burdened with a restriction using the “approved dwelling footprint” terms included in the standard recitals. The building platform that needs to be shown on the final plan needs to be setback 10m from the street, 4m from the rear boundary and 0.9m from the side boundary complying with the DCP. For the sake of abundant clarity the required wording is included here.

“No part of a dwelling or other habitable building may be constructed or allowed to remain on the lot(s) hereby burdened unless it is contained wholly within the approved dwelling footprint delineated INSERT (with INSERT replaced with whatever notation is used on the final plan by the surveyor to show this area) on the plan complying with the requirements of The Hills Shire Council.”

18. I note that three separate restrictions are nominated. The first (at Condition 43(a)) relates to “Onsite Stormwater Detention”. The second restriction (at Condition 43(b)) is concerned with “Front Building Setback (Residential)” and relates to both lots. The third restriction (at Condition 43(c)) is concerned with “Approved Dwelling Footprint” and relates to proposed Lot B. The reference in proposed conditions to “standard recitals” is concerned with a standard Council approach to the wording to be used in regard to the creation of restrictions and easements and the like (CCS pars 6-14).

19. The Applicant submitted without prejudice conditions (by email 17 January 2022) which agreed to Condition 43(b) nominated above, but rejected Conditions 43(a) and 43(c).

20. Whether or not Condition 43(c) above should be imposed is the major issue before the hearing. Council’s position is clear that the subdivision application should be refused without it, while the Applicant argues the justification for the condition is fundamentally wrong. Condition 43(a) is a lesser issue in this matter and I will consider it later when considering some other minor points of disagreement among the conditions put before the Court (without prejudice on Council’s part).

Expert evidence

21. There was a joint report prepared by town planning experts before the Court (Ex 2) which does have pertinence. I mention that the parties did not seek to examine the experts and thus, the written evidence in Ex 2 stands alone in that sense.

22. There was a good level of agreement among the experts on the existing setting (e.g. Ex 2 pars 7 and 9).

“7. We agree that the subdivision pattern in the immediate locality is one that has relatively wide frontages, with the adjoining properties with common boundaries with the site having frontages of approximately 27.4m and depths of approximately 33m – 35m.

…

9. We agree that the dwelling typologies in Excelsior Avenue and George Mobbs Drive are generally wider dwellings that reflect the wider frontages and are relatively shallow in terms of the depth of dwellings. This is particularly the case for those dwellings that share common boundaries with the subject site.”

23. There was also clarity on certain numerical compliance factors, including that both proposed lots comply with the 700m2 development standard for subdivision under the THLEP (Ex 1 par 5), and that the minimum lot frontage control (18m) is complied with. It can be assumed that there is no dispute the proposal, as amended, would now comply with the 27m minimum lot depth control under cl 2.13.1(c) of Part B of THDCP.

24. Clause 2.13.1 of THDCP is concerned with “Residential Lot Width and Depth”. The objectives of the clause are as follows:

“(i) To provide allotments of a size conducive to residential living, having regard to any development constraints or environmental qualities of that land; and

(ii) To ensure allotments have sufficient area to provide adequate access, open space, a sufficient building platform and attractive presentation to the street.”

25. Clause 2.13.2 of THDCP is concerned with “Building Platforms and Views”. The relevant objectives of the clause are as follows:

“(i) To ensure allotments have a suitable area for the erection of a dwelling and associated structures free of constraints or restrictions.

(ii) To ensure that the appearance of housing is of a high visual quality and enhances the streetscape and the urban environment.

(iii) To allow flexibility in the siting of new buildings and ensure the bulk and scale of new development protects reasonable neighbour amenity and maintain appropriate residential character.”

…

26. The related “development controls” to this clause, include the following:

“(a) The site must be capable of providing a building platform of at least 20 metres by 15 metres. The platform shall be sited in an accessible and practical location and on relatively flat terrain with stable soil and geology.

…

(c) The building platform is to be applied independently of the minimum building setbacks.”

…

27. Clause 2.14.1 of THDCP then, is concerned with “Building Setbacks”. The numerical controls would require a 10m front building setback, 4m rear setback at ground level and 6m above, and 900mm side setbacks (relevantly). The objectives of the clause are as follows:

“(i) To provide setbacks that complements the streetscape and protects the privacy and sunlight to adjacent dwellings in accordance with ESD Objective 7.

(ii) To ensure that new development is sensitive to the landscape setting, site constraints and established character of the street and locality.

(iii) To ensure that the appearance of new development is of a high visual quality and enhances the streetscape.”

28. With reference to the first objective mentioned above, I note that there is a provision at Pt A cl 5 of THDCP titled “Council’s ESD Objectives”. Nominated objective 7 is “to protect neighbourhood amenity and safety in the design and construction and operation of the development”.

29. A “Dwelling Layout Plan” for Lot B was included in the joint report (Annexure C to Ex 2). Mr Hurley, planning expert for Council, agreed that this plan “illustrates that a dwelling can be accommodated within the nominated platform”. However he noted that this application was for subdivision only, and the subject application “does not include a dwelling” (par 39). I am aware that the Annexure C plan had adopted a lesser side boundary length for Lot B than was now proposed with the amended plans. In essence, the new plans allow a further 1.58m along the side boundaries compared to the Annexure C plan, and thus additional area, generally.

30. As I understand it, and quite briefly here, the difference between the experts can be summarised as follows. Mr Hurley thought a lot depth of 29m (Ex 2 par 27) or up to 33m (ibid par 23) was appropriate for Lot B. There were a number of points made:

1. The fact of the deeper block depths of adjacent parcels and the general pattern of subdivision in the area (par 19):

“The character of the area is influenced by the subdivision pattern which comprises allotments that are reasonably uniform and/or consistent in both width and depth and therefore the depth of the allotments is reflective of the low density character of the area.”

2. Flexibility available (or apparent) as consequence of the proposed building demolition and lack of significant constraints (ibid pars 23 and 26),

3. Calculations which find that the control at cl 2.13.2(c) indicates a need for a block depth of 29m if the building platform control is to be achieved (ibid par 20).

31. Mr Hurley also referenced “outcomes” sought from the planning controls, citing the third zone objective of the R2 low density zone objectives and the first and second objective of cl 2.13.1 of THDCP, and emphasised the existing low density residential character (par 27):

“In my opinion the outcome that best reflects the intent of the existing low density residential character of the area and objectives of both clause 2.13.1 and 2.13.2 is for the subdivision to be amended so that proposed Lot B achieves a minimum depth of 29m from George Mobbs Drive.”

32. On the other hand, Mr Wood believed that relevant objectives of applicable controls are all satisfied. He referred to a need to consider lot depth and width concurrently as they clearly work together in respect to achieving both of the objectives of cl 2.13.1 of THDCP, and that the additional width available to Lot B “substantially offsets” lot depth concerns (Ex 2 par 13(i)). This was demonstrated by Figure 1 (ibid p 6) which indicated dwelling depths on neighbouring lots in the site vicinity are between about 9m and 14m. The Annexure C Dwelling Layout Plan was seen to show how a “a future built form” with “a consistent and attractive presentation to the street, compatible with the character of the locality” could be accommodated in the future with space for a landscape buffer at the front and rear setbacks, and for vehicular access and open space (ibid par 13).

Submissions and consideration

33. Written submissions were filed on behalf of both sides. The submissions go mostly to legal factors, with the parties aware of the tendered evidence of the planning experts.

Legal considerations

34. I first wish to address some of the legal queries raised. A concern raised by the Applicant was in regard to the reference to “standard recitals” and what might present as a further approval role for Council in regard to the specifics of any future title restrictions. The concerns were particularly in regard to certainty and finality, and thus validity. I am not troubled overly by what is proposed. Front of mind for me here is the need for conditions of consent to be construed “not as documents drafted with legal expertise, but to achieve practical results” (Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36]). Generally, I see a practicality to the approach taken by Council, with the substance of required inclusions (as to restrictions) sufficiently clear to the practitioners likely to be involved in the transition to subdivision certificates and associated title documentation. For example the reference to “approved dwelling footprint” in Condition 43(c) would be plain enough.

35. The Applicant also raises a nexus argument, mindful of s 4.17(1) of the EPA Act and the need for conditions to relate “to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent”. I do not rely on this argument in my conclusions. I generally accept, as argued by Council, that THDCP, a matter for consideration under s 4.15(1) does raise the issue of “building platform” (clause 2.13.2) in relation to land subdivision, which cross-references to cl 2.14.1 to create what might be understood as a numerical standard of relevance to the assessment of the application.

36. It is notable here that there is no direct, or specific expert evidence in regard to the imposition of Condition 43(c), as proposed by Council. This is of no great significance as I can call on the expert report to provide indirect evidence in regard to the merits questions before me.

Merits considerations

37. The hub of the question before me seems reasonably straightforward. There is a line of authority in this Court, and otherwise, which suggest it should not, at least, be a commonplace event to impose title restrictions when determining planning approvals relating to land subdivision. The Applicant took me to MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; [1999] NSWLEC 215 (MacDonald), in which Justice Lloyd examined a series of Land and Environment Court cases involving conditions of consent requiring restrictive covenants, a number of which involved land subdivision appeals. A principle which came through for me in the cases was that it should be seen as inappropriate to “excessively” rely on land title-related law when making decisions relating to environmental planning and under, in this case, the EPA Act. Below I provide an (abbreviated) quote from Lloyd J (in MacDonald at [14]) used by the Applicant in its closing submission (par 20):

“14. I am prepared in this case to follow and apply the principles explained in the above mentioned cases. I am not satisfied that the power of council to either grant or withhold development consent for the erection of any further or additional structure on the southern side of the applicant’s dwelling house needs to be reinforced in the manner contended for by the council. The Court has not, in the past, been favourably disposed towards conditions requiring registered restrictions as to user. In particular, Cripps J in Carr v Goulburn City Council held that it was not appropriate to impose such a condition. The abovementioned cases show that such a condition is neither necessary nor generally appropriate. I agree. In the present case, on a consideration of the merits, there is nothing… that takes the matter outside those principles. The condition will not be imposed.”

38. For me the reference in MacDonald to a finding that such conditions (restrictive covenants of various forms on land titles) are not “generally appropriate”, does not rule out that they may be sometimes appropriate. It follows for me, that the Court’s Planning Principle, after the findings of Senior Commissioner Roseth in Parrott v Kiama [2004] NSWLEC 77 (‘Parrott’), on when a residential subdivision application should impose constraints on future development, are not at odds with MacDonald. The planning principle adopted by Roseth SC provides as follows (Parrott at [17]):

“17 When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them.”

39. As I understand it, Council argues that, on examination of the merits, Parrott would take me to the conclusion that Condition 43(c) is warranted.

40. While Parrott should not be thought of as strictly binding, and behind it is the more general idea that in special circumstances it can be appropriate to apply restrictive conditions of this sort; three factors are mentioned in that judgement which I will use as an interpretive aid: (1) proposed allotments are smaller than usual, (2) special environmental sensitivity and (3) potentially significant neighbour impacts.

41. In regard to the first Parrott factor, it is clear from the evidence that there are no special concerns in regard to “environmental sensitivity” (eg Ex 2 par 23). Turning to the second factor, I note that neighbour impact matters were not pressed in the contentions or expert evidence. Council did take me to objecting submissions from neighbours and other parties (Ex 1 behind Tabs 20 and 21 and Ex 5). I have reviewed these submissions, relevantly. There was a concern raised that the rear boundary location would mean an additional neighbouring property for the neighbours either side (when compared to a subdivision adopting the alignment of the neighbouring block). The neighbours preferred having the one less neighbour. The only specific amenity related concern raised by objectors that was relevant to this application was in regard to the outlook a neighbour enjoyed towards Excelsior Avenue. This concern is more about what might happen on proposed Lot A, the larger lot, and thus the more obviously unlikely to require any restrictive covenants in this matter. Mr Wood’s evidence was that there was sufficient land available to manage expected neighbour amenity concerns (Ex 2 par 33). I tend to agree with Mr Wood, again noting the issue of neighbour impact was not a point pursued in the contentions or by Mr Hurley in particular. But also, I would think it reasonable to acknowledge it is not unlikely that even the prevailing large allotments in the site environs might, from time to time, be subject to potentially significant neighbour impacts, which residents go about managing as they can. Such concerns are best seen as matters for consideration with future development on the subject land.

42. Returning to Parrott, I note that Lot B would be smaller than the lots on either side of it. The experts say the adjacent lots have similar frontages to the site and depths of 33m – 35m (Ex 2 par 7). That is, 6-8m deeper than Lot B. But, I am afraid I am not convinced that the size test within Parrott (“smaller than usual”) alone, or of itself, could reasonably be seen as breaking, what was described as, “normal practice” (to allow subdivision of land “without constraints on the buildings that can later be built”).

43. The Applicant took me to Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; [2011] NSWCA 308 at [9] where the limits of power were described with the benefit of a citation from Temwood Holdings Pty Ltd v Western Australian Planning Commission (2002) 25 WAR 484; [2002] WASCA 10at [93], referencing further judicial authority:

"His Honour had pointed out that a power to attach conditions to development consents was to be understood as a power to impose conditions reasonably capable of being regarded as related to the purpose for which the functions of the responsible authority were being exercised; that purpose was to be ascertained from a consideration of the applicable legislation and town planning instruments rather than from 'some preconceived general notion of what constitutes planning'."

44. The point that the Court’s power here (in regard to the imposition of conditions) is related to applicable planning policy instruments rather than “preconceived notions” of planning makes me query what I see as an essential merits argument in Council’s case. Mr Hurley’s merits arguments are summarised at [29]-[30]. His central point seems to be that the pattern of established building alignments in the site environs should be maintained, and that the proposed subdivision (without building restriction) might result in the compromise of this established pattern of building alignment. This is specifically argued in RCS (par 35). Mr Hurley does link up with applicable planning policy instruments in drawing his conclusions and I wish to examine these links now.

45. The R2 Low Density zone objectives are reproduced at [4]. Along with providing for housing needs within a low density residential environment, the zone objectives are concerned with “(maintaining) the existing low density residential character”.

46. The objectives of THLEP’s minimum subdivision lot size clause are reproduced at [5], of note is the third objective “to ensure that the prevailing character of the surrounding area is maintained”. I note that the proposed lot size for Lot B of 742m2 comfortably complies with the control. I am aware that compliance with a development standard is only an opening to a merits assessment and does not necessarily demonstrate satisfaction of nominated objectives of the standard (Wenli Wang v North Sydney Council [2018] NSWLEC 122 at [64]).

47. Then I turn to THDCP’s relevant provisions, which under s 3.42(c) of the EPA Act are concerned with achieving such zone objectives. The three pertinent provisions are at cl 2.13.1 (“Residential Lot Width and Depth”), 2.13.2 (“Building Platforms and Views”) and 2.14.1 (“Building Setbacks”), indirectly. I have reproduced the objectives to these clauses above at [23], [24] and [25] respectively.

48. The planning provisions at cl 2.13.1 directly relate to lot depth, indicating an applicable control of 27m with, which the proposal complies. Section 4.15(3A) of the EPA Act limits power to consent authorities in settings of this kind. That is, in providing that consent authorities are “not to require more onerous standards with respect to that aspect of the development (when an application complies with the applicable development control plan standard)”.

49. I acknowledge the oddity, or inconsistency, within THDCP’s controls. This is because the quite regularly required setbacks of 10m front and 4m rear when coupled with a 15m building platform depth, when added together, total 29m, something in excess of the stated minimum lot depth control.

Finding

50. As indicated above [35]-[36], and mindful of MacDonald and Parrott, I think I would need to find some distinct and substantive need before the significant threshold is passed to require the imposition of conditions which would impose restrictive covenants on land titles of the form proposed by Council’s Condition 43(c).

51. When I examine the various objectives nominated in THLEP and THDCP as referenced above, it seems to me that the applicable planning policy instruments can be reasonably broken down into three factors:

• Having sufficient space for low density residential living and the various accoutrements (e.g. R2 zone objective 1, THLEP cl 4.1 objective 1, THDCP cl 2.13.1 objectives 1 and 2, cl 2.13.2 objectives 2 and 3).

• Seeking to ensure development maintains or complements the streetscape character and is sensitive to the landscape setting (e.g. R2 zone objective 3, THLEP cl 4.1 objective 3, THDCP cl 2.13.2 objectives 2 and 3, cl 2.14.1 objectives 1, 2 and 3).

• Protecting the amenity of neighbours (e.g. THDCP cl 2.13.2 objective 3, cl 2.14.1 objective 1).

52. Firstly, it seems clear to me that the first factor mentioned above, would not, of itself, require the impositions of the disputed condition. I accept Mr Wood’s evidence that there is more than ample space with the subdivision, as proposed. THDCP’s adoption of a building depth of 15m as a numerical standard (cl 2.13.2, control (a)) can be thought of as excessive in practical terms in this particular lot configuration, given the fact of the depths of adjacent dwellings (Ex 2 Figure 1). While it is not as simple as this, Mr Wood calculates an available built area footprint (2 storey dwelling) of 538m2 (Ex 2 par 13 ii) based on indicative plans, a very large area indeed.

53. There is the argument that the second and third factors, concerned with streetscape and landscape character including built form quality (as a wider concern) and neighbour impacts (more immediate) will be much more dependent on the form of any housing that might eventuate on the lots than the requirements imposed by Condition 43(c). In response to this I think, Mr Hurley argues that the “character of the area is influenced by the subdivision pattern” (Ex 2 par 19). He argues that this subdivision pattern “comprises allotments that are reasonably uniform and/or consistent in both width and depth and therefore the depth of the allotments is reflective of the low density character of the area”.

54. It is one thing to argue that the block widths should reflect the low density character of the area, naturally allowing for similar built form to that existing and similar landscape treatment as a character element apparent in the wider public domain. But when I consider proposed Lot B, I note it would be of the same width as the nearby street blocks, and provide for as much as 742m2 in site area. This kind of site area would be reasonably seen as providing ample space for a good quality and well-serviced dwelling and landscaping, and the like.

55. I am not convinced of Mr Hurley’s argument that the block depth as proposed would be likely of itself to bring about a circumstance where a future dwelling would result in an adverse effect on local character. There is insufficient, in the way of special circumstances to suggest other than there is quite ample opportunity for a building on Lot B to meet the streetscape and landscape character concerns of Council’s planning policy instruments, without the proposed restrictions. I have already considered the question of immediate neighbour impacts and find no special circumstances, warranting the imposition of the title restrictions proposed in Condition 43(c).

56. Further in regard to conditions, I do not agree with the imposition of Condition 43(a) concerned with on-site detention restrictions on Lot A. I see this as a matter related to future development on that lot. Council’s proposed Condition 5 relates to demolition inspections. I see this as a standard condition of Council and do not believe sufficient in the way of counter argument has been provided. Council’s proposed Condition 9 related to tree removal and no longer applies. Condition 16(f), relating to the clearing and draining of the site is seen to be premature.

Conclusion

57. The threshold for the inclusion of proposed Condition 43(c), in relation to title restrictions, has not been reached in this instance. The appeal is upheld, and this condition will not be imposed. Other points of disagreement in the conditions are outlined above. Otherwise, the conditions of consent for the subdivision are as agreed by the parties (without prejudice on Council’s part).

58. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application No. 641/2021/ZA subject to the conditions of consent in Annexure A.

……………………………

P Walsh

Commissioner of the Court

Annexure A (202054, pdf)

**********

Decision last updated: 20 January 2022