Platino Properties Pty Limited v Lane Cove Council
[2008] NSWLEC 288
•9 October 2008
Land and Environment Court
of New South Wales
CITATION: Platino Properties Pty Limited v Lane Cove Council [2008] NSWLEC 288 PARTIES: APPLICANT
RESPONDENT
Platino Properties Pty Limited
Lane Cove CouncilFILE NUMBER(S): 10618 of 2008 CORAM: Preston CJ KEY ISSUES: Development Application :- subdivision and erection of a single dwelling house - dwelling house currently permissible but will become prohibited in proposed high density residential zone under draft local environmental plan - certainty and imminence of draft local environmental plan - inconsistency of proposed development with existing and likely future character of locality LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 65, s 68, s 79C, s 97 DATES OF HEARING: 1 and 4 September 2008
DATE OF JUDGMENT:
9 October 2008LEGAL REPRESENTATIVES: APPLICANT
Mr J Hannaford (solicitor)
SOLICITORS
Hannaford LawyersRESPONDENT
Mr A Seton (solicitor)
SOLICITORS
Marsdens Law Group
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPRESTON CJ
9 OCTOBER 2008
10618 OF 2008
PLATINO PROPERTIES PTY LIMITED V LANE COVE COUNCIL
JUDGMENT
1 HIS HONOUR: Lane Cove Council has, in consultation with the NSW Department of Planning, developed a new comprehensive draft local environmental plan for the municipality, draft Lane Cove Local Environmental Plan 2008 (“draft LCLEP 2008”). The review process that culminated in the draft LCLEP 2008 commenced in 2000 and has complied with the various stages of NSW planning reforms since 2001. It conforms to the State government’s Metropolitan Strategy and the Draft Inner North Subregional Strategy residential (2,700 dwellings for 15 years) and employment (6,500 jobs for 25 years) targets as agreed upon with the Department of Planning. The Draft LCLEP 2008 is Stage 1, being for the first 15 years, and represents 70% of the total 25 year (to 2031) residential target of 3,900 dwellings in the Metropolitan Strategy.
2 To achieve the residential target of 2,700 dwellings over 15 years, the draft LCLEP 2008 identifies a number of areas that, over this period, are to be developed as residential flats and townhouses as well as infill flats and shop top housing. These areas are zoned R4 High Density Residential. They vary in size and are located throughout the municipality, predominantly along main traffic arteries where public transport is available. One of these proposed high density residential areas is situated on the east side of Burns Bay Road, Lane Cove, in the vicinity of Penrose Street.
3 Platino Properties Pty Limited lodged a development application for the subdivision of land in Strata Plan 19076 with a street address of 280 Burns Bay Road (also known as 40A Cope Street), Lane Cove into two lots and the construction of a detached dwelling house on the vacant subdivided lot. The proposed development site is part of one of the areas to be zoned R4 High Density Residential under the draft LCLEP 2008. Lane Cove Council refused the development application.
4 Platino Properties has appealed under s 97 of the Environmental Planning and Assessment Act 1979 to this Court. The central issue on the appeal is the consistency of the proposed low density residential development with the existing medium density residential character of the site and surrounding lands and with the future high density residential character planned for the area under draft LCLEP 2008.
5 For reasons I will provide below, I have decided that the proposed development is inconsistent with the existing and future planning for, and character of the area and is likely to impede the orderly and economic development of the site and adjoining lands for high density residential uses. Accordingly, the development application should be refused and the appeal dismissed.
The proposed development
6 The site is a large hatchet shaped lot with a frontage of 11.73 m and a total area of 2,571 m2. It is developed with two, three-storey residential flat buildings. The main body of the lot, the hatchet blade, that is proposed to become the eastern lot, has an area of 1,802 square metres (about 55 m by 33 m). It will contain the residential flat buildings that will continue to utilise their existing access off Cope Street via Caroline Chisholm Lane.
7 The proposed second or western lot, the handle of the hatchet, will have an area of 772 m2 (11.73 m x 66.75 m). It is vacant but for a number of substantial trees and a sandstone wall and gateway. This stone wall is a listed heritage item and extends from the western lot's frontage along the southern boundary of the appeal site. There is an existing driveway that extends from the site's Burns Bay Road frontage through the gateway and across its north-west corner, providing access to the neighbouring (to the north) townhouse development at 278 Burns Bay Road. The proposed western lot is to be developed with a single storey, three-bedroom dwelling house with a detached two-car garage that is to be set back about 9.5 m from the Burns Bay Road frontage. Vehicular access to the garage will utilise (with some modifications) the existing driveway off Burns Bay Road.
Neighbouring development
8 The neighbouring townhouse development contains four, two-storey dwellings that have private courtyards on the north side and, on their south side facing the western lot, have garages and entrances at ground level and bedrooms with small balconies at first-floor level. Further to the north and to the north-east, beyond these townhouses, is the two-storey Caroline Chisholm retirement village at 276 and 280 Burns Bay Road. To the east is the two, three storey residential flat buildings on the part of the site that would become the proposed eastern lot. To the south of the site at 284 Burns Bay Road is a large site developed with a single storey residential style building that is used for commercial purposes.
9 Hence, the neighbouring development in the block bounded by Burns Bay Road, Cope Street and Caroline Chisholm Lane, is of a medium density character.
Planning controls
10 The site is subject to the provisions of the Lane Cove Local Environmental Plan 1987 (“LCLEP 1987”). The general aims of the LCLEP 1987 include, in cl 2(1)(a):
- “...to preserve and where appropriate improve the existing character and environmental quality of the land to which it applies in accordance with the indicated expectations of the community”.
11 The particular aims of LCLEP 1987 in relation to housing, are in cl 2(2)(a):
- “(i) to maintain and where appropriate improve the existing amenity and environmental character of residential zones,
- (ii) to provide additional medium density housing in limited quantities within certain residential zones to assist in the maintenance of the present population of the Municipality, and
- (iii) to permit new residential development only where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development”.
12 The particular aims of LCLEP 1987 in relation to conservation include, in cl 2(2)(d)(ii):
- “to control all new buildings, extensions and alterations to ensure their compatibility with existing environmental character”.
13 Under the LCLEP 1987, the proposed western lot (where the dwelling house is to be constructed) is zoned Residential 2(b) and the proposed eastern lot (that contains the existing residential flat buildings) is zoned Residential 2(c). Zones 2(b) and 2(c) are two of the five residential zones under LCLEP 1987. They are at the upper end of an increasing scale of residential density, ranging from Zone 2(a2) (detached single family dwelling areas); Zone 2(a1) (detached single family dwelling area with limited single storey villa home development); Zone 2(b1) (townhouses or villa home development and other forms of buildings of a lesser scale than townhouse development); Zone 2(b) (medium density residential development with townhouse or villa home development); and 2(c) (high level of residential development with villa homes, townhouses and residential flat buildings).
14 Clause 9(3) of LCLEP 1987 requires that:
- “Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.”
15 The objectives of the Residential 2(b) zone:
- “are to provide for medium density residential development and to retain the existing residential amenity and streetscape. Townhouse or villa home development which will maintain the existing street character and will be sympathetic to the neighbourhood in relation to setback, building mass and style, views, dwelling colour, landscaping, the provision of adequate off-street car parking and minimum overshadowing of neighbouring development will be permitted within the zone”.
16 The objective of the Residential 2(c) zone:
- “is to retain the existing high level of residential development. Development for the purposes of villa homes, townhouses and residential flat buildings which is sympathetic to the neighbourhood in relation to setbacks, building mass, views, dwelling colour, off-street parking, landscaping and overshadowing of neighbouring development will be permitted within the zone”.
17 Dwelling houses are permissible with consent in both the 2(b) and the 2(c) residential zones.
18 Another relevant consideration under s79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 is the above-mentioned draft LCLEP 2008 under which the site is included in the R4 High Density Residential zone. The objectives of the R4 High Density Residential zone include “to provide for the housing needs of the community within a high density residential environment”, “to provide a variety of housing types within a high density residential environment” and “to avoid the isolation of sites resulting from site amalgamation”. Under cl 2.3(2), the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
19 Development permissible with consent in the R4 High Density Residential zone includes high and medium density residential development types but dwelling houses are prohibited. The draft LCLEP 2008, by reference to the Floor Space Ratio Map, allows development at a floor space ratio of up to 1.7:1. By reference to the Height of Buildings Map, the proposed western lot can be developed to a maximum height of 18 metres (about 6 storeys) and land to the south to a maximum height of 21 metres (about 7 storeys).
The Council’s contentions
20 The Council’s statement of facts and contentions identifies eleven separate contentions essentially as follows (excluding some particulars):
(a) The proposed development should be refused as it is prohibited in Zone R4 High Density Residential under cl 2.3 of the draft LCLEP 2008.
(b) The proposed development is unacceptable and should be refused as it is inconsistent with certain general aims (relating to existing character and environmental quality) and particular aims (relating to housing and conservation) in cll 2(1)(a), 2(2)(a)(i) and (ii) and 2(2)(d)(ii) of the LCLEP 1987.
(c) The proposed development is unacceptable and should be refused as it fails to relate sympathetically and harmoniously with the existing and desired future character and streetscape of the locality.
(d) The proposed development is unacceptable and should be refused as it is inconsistent and out of character with the prevailing subdivision pattern and size of lots in the locality.
(e) The proposed development is unacceptable and should be refused insofar as it fails to comply with the 15m minimum lot width requirement in cl 3 in Part VII of the Lane Cove Residential Zones Development Control Plan (“RZDCP”).
(f) The proposed development is unacceptable and should be refused insofar as it fails to ensure that the predominant landscape quality of the locality is maintained and enhanced, in that the landscaped area for the proposed eastern lot which would contain the existing residential flat buildings would be reduced to 38% in circumstances where Part V of the RZDCP requires a minimum of 50% of the site to be landscaped.
(g) The proposed development is unacceptable and should be refused as it will be surrounded by multi-storey developments to the north and east and, in that regard, will not have acceptable amenity in terms of privacy and overlooking.
(h) The proposed development should be refused as the impacts from future development on the land to the south that is to be zoned Residential R4 High Density Residential under the draft LCLEP 2008 with a maximum height of 21 metres (about seven storeys) will be unacceptable in terms of privacy and overlooking.
(i) The proposed development should be refused as there is no legal vehicular access available to or from the subject site onto Burns Bay Road taking into account the restriction as to user under s 88B of the Conveyancing Act 1919 preventing such vehicular access.
(k) The proposed development is unacceptable and should be refused as it will set an undesirable precedent for similar inappropriate development in the area and in that regard is not in the public interest.(j) The proposed development should be refused as a boundary fence cannot legally be erected along the northern boundary of the land taking into account the s 88B restriction as to user referred to in the previous contention.
21 Because of my conclusions on contentions (a)-(d) concerning the inconsistency of the proposed development with the existing and future planning for and character of the area, it is unnecessary to deal with the Council’s other contentions.
Inconsistency with Draft Lane Cove Local Environmental Plan 2008
22 In his submissions, Mr Seton, the solicitor for the Council, identified the draft LCLEP 2008 as the major issue in the case. He submitted that the draft LCLEP 2008 is certain and imminent and should be given significant weight. Mr Hannaford, solicitor for the applicant, acknowledged that the draft LCLEP 2008 must be given weight under section 79C(1)(a)(ii) of the Act but says that because its future is uncertain, it should not attract significant weight. To assist in this regard, a history of draft LEP 2008 was provided. Relevant elements of that history are as follows.
23 On 19 June 2000, the Council resolved to prepare a comprehensive draft local environmental plan to review and update the existing LCLEP 1987. Following studies, community consultations and discussions with the Department (the then Department of Infrastructure Planning and Natural Resources), the Council resolved to adopt the draft Lane Cove Local Environmental Plan 2004.
24 Following further discussions and negotiations over several years with the Department, that draft plan was converted by the Council to accord with the standard or template local environmental plan prescribed by the Standard Instrument (Local Environmental Plans) Order 2006. It was also amended to incorporate the residential and employment growth targets set by the Department. The resultant draft Lane Cove Local Environmental Plan 2007 was adopted for exhibition in accordance with a certificate under s 65 of the Environmental Planning and Assessment Act 1979 issued by the Department for two months until the end of February 2008, with submissions accepted until 18 March 2008. Under that draft plan, the site and surrounding lands were zoned R3 Medium Density Residential.
25 Following consideration of a large number of submissions and comments, the plan was amended and the resultant Draft Lane Cove Local Environmental Plan 2008, was adopted by the Council on 10 June 2008 and exhibited from 27 June to 25 July 2008. One of the amendments was to upgrade the zoning of the site and surrounding lands to R4 High Density Residential.
26 The Department of Planning had, on 27 June 2008, issued a certificate under s 65 of the Environmental Planning and Assessment Act 1979 requiring the plan to be issued in a format which, among other matters, would have produced a potential new dwellings yield of over 5,000, being double the target the Council had agreed with the Department in May 2008 of 2,700 for the Stage 1 (15 year) period to 2021, which would be 70% of the total 25 year (to 2031) target of 3,900. The Council wrote to the Department of Planning on 1 July 2008 expressing considerable concerns at this departure from the Metropolitan Strategy. The Department of Planning responded mid-exhibition by letter of 15 July 2008. It confirmed that the Stage 1 target would now be permitted to remain at 70% (2,730 dwellings). The Department raised no issue with the zoning of the area in which the site is located as R4 High Density Residential.
27 The Council resolved on 4 August 2008 to adopt the draft LCLEP 2008, as amended at that meeting. Those amendments did not affect the zoning or controls applicable to the site. The draft LCLEP 2008 has now been forwarded to the Department with the Council’s submission under s 68 of the Environmental Planning and Assessment Act 1979 for the draft plan to be made by the Minister and gazetted.
28 Mr Hannaford, for the applicant, submitted that the draft LCLEP 2008 should not be given significant weight because it has been in the formative process since 2000 and it is unclear if it will require further amendment and/or re-exhibition. The applicant pointed out that the zoning of the subject land had been changed between the first and the second exhibition period from R3 Medium Density to R4 High Density. Having regard to the zoning map of the draft LCLEP 2008, the Council’s Strategic Framework and the Memorandum on the traffic impact of the draft LCLEP 2008 for part of the Lane Cove local government area, dated 5 May 2008, by Gennaoui Consulting Pty Ltd presented to the Council, the applicant submitted that the zoning of this area (that includes the site) may be uncertain and delayed in favour of more suitable high density precincts. In this regard, the applicant noted the Traffic Impact Memo had suggested that a study be carried out into through traffic in the Lane Cove West area to identify possible solutions to “minimise congestion along Centennial Avenue particularly at the intersection with Penrose Street” where there is a very poor level of service. The applicant also referred to this area's relatively low ranking for high density residential in the Strategic Framework.
29 Mr Seton for the Council submitted, to the contrary, that the draft LCLEP 2008 can now be considered certain and imminent. The upgraded zoning of the site occurred before the latest exhibition of the draft LCLEP 2008. No change has occurred since that time. The Strategic Framework and the Traffic Impact Memo preceded the latest exhibition of draft LCLEP 2008. The draft LCLEP 2008 took the matters raised in those documents into account. Those documents cannot be indicative of any uncertainty in relation to draft LCLEP 2008; to the contrary, they are indicative of the certainty that can be attached to the draft LCLEP 2008.
30 The Council submitted that the Department of Planning's letter of 15 July 2008 is also indicative of the certainty of the zoning and the controls for the site and surrounding lands. The Department’s letter discusses other areas that are to be rezoned for high density residential but raises no concerns about the area in which the site is located. More particularly, the Department’s letter discusses a number of matters mainly in relation to dwelling yields in certain other areas and invites the Council to provide accurate assessments of these in its submission under s 68 of the Environmental Planning and Assessment Act 1979. Suggestions are also made in relation to the further consideration of floor space ratios, building heights and design solutions. However, none of these matters is raised in relation to the area in which the site is located.
31 I generally accept the Council’s submissions on the certainty and imminence of the draft LCLEP 2008. Although the process of preparing the draft LCLEP 2008 has extended over eight years, this has meant that the draft LCLEP 2008 has been able to comply with the various stages of the State government’s planning reforms, including the Metropolitan Strategy. It has, one by one, overcome hurdles that might have affected certainty or imminence. It implements the State government’s residential target for the next 15 years as agreed with the Department of Planning. A primary means by which this residential target is achieved is by zoning appropriate areas R4 High Density Residential, including the area in which the subject site in this litigation is located. The draft LCLEP 2008 has been issued with a certificate under s 65 of the Environmental Planning and Assessment Act 1979 and has been exhibited. The Department’s letter of 15 July 2008 does not suggest that there are any problems with the draft LCLEP 2008 in relation to the area in which the site is located, including the R4 High Density Residential zoning for the area. The draft LCLEP 2008 has been adopted by the Council and has been forwarded under s 68 of the Environmental Planning and Assessment Act 1979 to the Department to be made by the Minister and gazetted.
32 Mr Chapman, a planner called by the applicant who had earlier expressed the opinion that the draft LCLEP 2008 was not certain or imminent, upon being examined in oral evidence, conceded that he did not know of anything which would prevent or impede the Minister making the draft LCLEP 2008 or know of any reason why the Minister would not make the draft LCLEP 2008.
33 The Department's letter of 15 July 2008 did request the Council, in its submission under s 68 of the Environmental Planning and Assessment Act 1979, to address certain matters, including estimates of lot yields, height controls and design solutions, in relation to areas other than the area in which the site is located or, alternatively, to demonstrate that these areas can be kept for consideration in the next strategic work to achieve the 2031 targets. It is possible, therefore, that the Department of Planning could request the Council to further address these matters, which might delay the making of draft LCLEP 2008. However, the contents and tenor of the letter are not such as to cause me to conclude that the whole draft LCLEP 2008 should thereby be considered to be neither certain nor imminent.
34 Accordingly, I am of the opinion that the proposed zoning of the site as R4 High Density Residential and the associated controls that would be applicable under draft LCLEP 2008 should be considered to be certain and imminent and should attract significant but not determinative weight in the assessment of the proposed development.
35 In the joint report between the planning experts, Mr Shanker, the expert called by the Council, pointed out that the objective of the proposed R4 zone is to provide for a high concentration of housing, whereas the proposed single dwelling house would promote low-density development that would not be consistent with the objective. A further objective is to ensure that landscaping is maintained and enhanced as a major element of residential development, whereas the proposal will reduce the existing landscaped area.
36 In response, Mr Chapman, the expert called by the applicant, emphasised that the proposal is still permissible under the current LCLEP 1987, notwithstanding that draft LCLEP 2008 proposed to prohibit dwelling houses. Nevertheless, he conceded in cross examination that the proposal to put a single dwelling house on the proposed western lot is not consistent with the planning approach under draft LCLEP 2008 of promoting high density residential development within the locality.
37 During the hearing, the question of whether the proposed subdivision and single dwelling house would impede implementation of high-density objectives of the R4 zone in draft LEP 2008 was further explored with the experts.
38 Mr Chapman and Mr Shanker agreed that because of its size it was unlikely that the proposed western lot could be developed to the anticipated density without it being consolidated with some adjoining land.
39 Mr Chapman was of the opinion that the heritage stone wall and the narrow strip of land owned by the council would prevent consolidation with land to the south. Similarly, consolidation with the relatively townhouses to the north, which are strata titled, would be difficult. The problem with the townhouse development being strata titled is obtaining the consent of all the strata title owners to sell the site for consolidation and redevelopment.
40 Consolidation with the townhouses is, nevertheless, the most likely possibility as this could produce a 33 m by 66 m allotment that could, as agreed by Mr Shanker, be developed in accordance with draft LCLEP 2008. In this context, he agreed that if it remained as part of the residential flat building site, and not subdivided as proposed, it would be more likely to be consolidated for development.
41 In answer to a question of whether the proposed dwelling house would have an impact, Mr Shanker said that this would restrict the potential for developing an allotment created by consolidation with the townhouse site, in accordance with draft LCLEP 2008, by adding a further constraint, that being the need for the proposed dwelling house to be demolished.
42 In oral examination, Mr Chapman also agreed that the proposed dwelling house would, in a meaningful way, make it harder to develop the two lots, being the proposed western lot on which the house is erected and the townhouse lot to the north. Consolidation of these two lots would be less likely because the western lot would be under a separate title and would have only been recently developed. Conversely, if the proposed western lot remained part of the existing site on which the residential flat buildings exist, it would be more likely to be consolidated.
43 However, upon further reflection, Mr Chapman considered there may be countervailing factors. Mr Chapman believed that because the market value of the 1460 square metre townhouse site with four dwellings on it would be higher than the 772 square metre proposed western lot with one dwelling on it, having one dwelling on 772 square metres may not put off consolidation. The creation of the western lot may also facilitate consolidation with the townhouse lot because it would be easier for a developer proposing to consolidate the townhouse lot with the proposed western lot to negotiate with one owner if the western lot were to be subdivided rather than with the ten strata title owners in the residential flat buildings if the subdivision were not to occur. Mr Chapman also believed that negotiations in the future may be more difficult because the strata title owners, once they apprehended the high density form of residential development the proposed R4 zoning would permit on the proposed western lot, might not be so amenable to subdivide and sell the western lot.
44 As I have noted above, the proposed zoning of the site and surrounding land R4 High Density Residential under draft LCLEP 2008 should be considered to be certain and imminent and should be given significant weight. To give significant weight to the draft LCLEP 2008 is to recognise, first, that a single dwelling house will be a prohibited form of development on the site and on surrounding lands zoned R4 High Density Residential; secondly, that a single dwelling house would be inconsistent with the zone objectives of providing a high density residential environment and avoiding isolation of sites; and thirdly, that a single dwelling house would be inconsistent with the controls of floor space ratio and height of buildings that are intended to encourage high density residential development.
45 The prohibition on dwelling houses, the zone objectives and the controls for the R4 High Density Residential zone reflect the fact that land is a scarce resource and that development of land for low-density residential development (dwelling house) necessarily precludes its development for high-density residential development, as well as potentially impeding development of adjacent land for high-density residential development because of the impact of such development on the low-density residential development (such as overlooking and overshadowing).
46 To approve the proposed development, therefore, would be to allow development for a purpose that will be prohibited under, and inconsistent with, the zoning, objectives and controls under the future local environmental plan, draft LCLEP 2008, that will be applicable to the site. That would create a non-conforming use. This is a poor planning outcome.
47 Furthermore, I consider that the proposed subdivision and erection of a dwelling house on the proposed western lot is likely to impede the redevelopment of the site and adjacent lands for high density residential uses. This impediment may occur for a number of reasons.
48 First, the part of the site that is the proposed western lot is currently part of a larger lot of around 2,521 square metres. The proposed western lot enabled the development of the site for the two, three storey residential flat buildings by contributing to the landscaped area of the site. If the proposed western lot is subdivided off, the remaining lot, the proposed eastern lot, will have less landscaped area than would currently be required for the existing residential flat buildings under existing planning controls (38% compared to 50% required). However, this problem will also continue in the future. Both the proposed western and eastern lots will be zoned R4 High Density Residential under draft LCLEP 2008. The proposed eastern lot will have a maximum height of 12 metres (about four storeys). Hence, redevelopment to the potential under the draft LCLEP 2008 would add about a storey in height (from three to four storeys) and consequentially increase the floor space. However, this also would exacerbate the shortfall of landscaped area that would be created by subdividing off the proposed western lot that contained landscaped area. This consequence may restrict the proposed eastern lot from being redeveloped to its high density residential potential.
49 Secondly, the creation of a separate title and erection of a new dwelling house on it is likely to make it harder to carry out high density residential development, as both Mr Shanker and Mr Chapman stated. The improved lot would be more costly than the current unimproved land. The cost of development would also be increased by the necessity to demolish the dwelling house and other structures. The new owner may also be reluctant to sell in the near future the dwelling house that has only recently been acquired. I am not persuaded that the countervailing factors later referred to by Mr Chapman are sufficient to offset the difficulties created by the development of the proposed western lot.
50 Thirdly, the existence of a dwelling house on the proposed western lot may inhibit the redevelopment of the land to the south (which has a building height of 21 metres (about seven storeys) and would face north into the dwelling house) and the townhouse lot (which has a building height of 18 metres (about six storeys) and would face south into the dwelling house). In both instances, there would be considerable issues of overlooking and invasion of privacy of the dwelling house and, in the case of the townhouse lot, overshadowing of the dwelling house. Redevelopment of either or both adjacent lots would create serious amenity issues for the dwelling house. These potential adverse effects may inhibit development of the adjacent lots to their high density residential potential.
51 In these respects, therefore, the proposed development will be inconsistent with and impede development in accordance with the zoning, objectives and controls of the draft LCLEP 2008. I consider this is not an appropriate planning outcome and the proposed development should be refused.
Inconsistency with character and streetscape
52 The character and streetscape contentions, in essence, involve questions of whether the proposed subdivision and dwelling house would:
(a) be inconsistent with the aims of the LCLEP 1987 in relation to housing,
(c) be inconsistent and out of character with the prevailing subdivision pattern and size of lots in the locality.(b) not relate sympathetically and harmoniously with the existing and desired future character and streetscape of the locality, and
53 In essence, Mr Shanker's evidence, in relation to these contentions, is:
(a) The proposed single storey dwelling house will identify as such and will thus not be consistent or compatible with the existing character of this locality which is comprised of multi-dwelling and industrial developments. It will not improve the existing character of the adjoining development.
(b) In its present form, the proposed western lot, being open space, contributes to the character and amenity of the residential flat buildings on the site and also of the adjoining townhouse development north of the site. The proposed western lot is not physically isolated or inaccessible from the existing residential flat buildings.
(c) The proposed western lot, by itself, would not meet the standards to allow medium density residential development, primarily because it is too small and narrow. If the proposed western lot would not meet the requirements of the Lane Cove Residential Zones Development Control Plan for townhouse or villa development, it is not appropriate to subdivide the site and create a new lot on which to construct a single dwelling instead.
(e) The proposed western lot is not consistent with the surrounding subdivision pattern. An analysis of the aerial photograph of the locality reveals that all lots in the vicinity of the site in the 2(b) and 2(c) zones are comparatively larger and there are no lots as small and narrow as the proposed western lot.(d) A single dwelling house on the proposed western lot is not compatible with the character of the surrounding multi-dwelling and industrial developments or with the streetscape.
54 In essence, Mr Chapman's evidence in response is:
(a) The proposed single storey dwelling would not visually impact on the character of the locality and would be an appropriate form/scale of development for the proposed western lot. This is supported by the photomontage of the streetscape.
(b) The proposed western lot is zoned 2(b) and there is a reasonable expectation that it will accommodate some type of residential development. By its configuration it is separated from the residential flat buildings on the eastern part of the site and is also isolated from the property to the south by the heritage wall and the Council owned strip of land adjoining the southern boundary.
(c) Mr Chapman agrees that the proposed western lot does not meet the standards to allow medium density development. Furthermore, medium density development, such as villa homes or townhouses, on the proposed western lot would have greater impacts on the adjoining townhouse development to the north of the site and greater traffic and parking impacts. Hence, the only type of residential development permissible in the 2(b) zone able to be accommodated on the proposed western lot is a single dwelling house.
(d) The proposed dwelling house presents an appropriate scale for the proposed western lot, minimising impacts on the adjoining townhouse development to the north.
(f) Mr Chapman agrees that the proposed western lot is not consistent with the surrounding subdivision pattern but does not agree that this makes the proposed lot unacceptable. There is not a consistent subdivision pattern in the immediate locality, therefore the proposed lot cannot be deemed to be out of character.(e) The proposed dwelling house will have no impact on the streetscape of Burns Bay Road (as demonstrated by the photomontage) has been designed to fit on the proposed western lot and will be compatible with the adjoining two storey townhouse development to the north.
55 I accept the evidence of Mr Shanker in preference to that of Mr Chapman on these contentions. I consider the proposed subdivision and dwelling house is likely to be inconsistent with both the existing character, as planned under LCLEP 1987, and the likely future character, as planned under draft LCLEP 2008, of the locality.
56 The proposed western lot, having regard to its area, length and width, and its juxtaposition with the larger allotments adjoining, would be without precedent in the immediate locality, especially in the block bounded by Burns Bay Road, Cope Street and Caroline Chisholm Land. This has a consequence for the development potential of the proposed western lot. The existing larger allotments of the locality are currently able to support medium density residential and industrial developments and have the potential to be developed in the future for high density residential uses. The proposed western lot, in contrast, by reason of its area, length and width, is incapable of being developed for even medium-density residential development. The only type of residential development the proposed western lot could accommodate is a single dwelling house. Such a low density residential development is not consistent with the objectives of the 2(b) zone under LCLEP 1987 (which encourages medium density residential) or the proposed R4 zone under draft LCLEP 2008 (which encourages high density residential). It would be anomalous in the immediate locality.
57 The applicant’s argument that the proposed western lot is vacant but is zoned 2(b) and therefore ought to accommodate some form of residential development on it, is flawed. The proposed western lot does not exist at all at the moment; it is part of the existing site that has been developed for the purpose of residential flat buildings. It is part of the landscaped area for the residential flat buildings and is properly characterised as being for that purpose. Hence, for planning purposes, it is already put to a residential purpose. There can be no reasonable expectation, created by being zoned 2(b) under LCLEP 1987, that the landscaped area of the existing residential flat buildings development will be able to accommodate a further residential building.
58 The land comprising the proposed western lot, being part of the landscaped area, does now, and can in the future, contribute to the amenity and environmental character of the residential flat buildings on the site. Although the residents of the residential flat buildings apparently do not currently use the land to its full potential, use and enjoyment of the land could be increased by upgrading the landscaping and the facilities offered on the land.
59 The landscaped area also contributes to the amenity and environmental character of the townhouse development to the north in that it provides borrowed scenery and a pleasant landscaped outlook. It acts as a buffer between the commercial and industrial use further to the south. It forms part of the mosaic of built form and landscaped area that constitutes the medium density and industrial development of the locality.
60 The loss of the landscaped area by subdivision and erection of single dwelling house will also impede future development of the site and surrounding lands for high density residential uses for the reasons given earlier in relation to the draft LCLEP 2008.
Conclusion
61 For these reasons, the proposed development of subdivision and construction of a dwelling house on the site is inappropriate and unacceptable and development consent should be refused.
62 The Court’s orders are:
1. The appeal is dismissed.
3. The exhibits may be returned.2. Development application no 109/07 for a Torrens title subdivision and construction of dwelling house on land in Strata Plan 19076 known as 280 Burns Bay Road or 40A Cope Street, Lane Cove is determined by refusal.
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