R J Cleary v Gosford City Council

[2007] NSWLEC 658

Land and Environment Court

of New South Wales

CITATION:

R J Cleary v Gosford City Council [2007] NSWLEC 658

PARTIES:

APPLICANT
R J Cleary

RESPONDENT
Gosford City Council

FILE NUMBER(S):

10541 of 2007

CORAM:

Hussey C

KEY ISSUES:

Development Application :- 2 lot subdivision, non compliance with minimum lot size (SEPP 1 Objection), character of area

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Gosford Planning Scheme Ordinance
State Environmental Planning Policy No 1 -Development Standards
State Environmental Planning Policy No 71 - Coastal Protection
DCP 155 - Single Dwellings & Ancillary Structures
DCP 159 – Character
Local Government Act 1993 - Section 89
Rural Fires Act 1997

DATES OF HEARING:

3/9/2007

 
DATE OF JUDGMENT: 

9 October 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr B. Goldsmith, agent

RESPONDENT
Mr R. Byrd, solicitor
of P J Donnellan and Co.

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

9 October 2007

10541 of 2007 R J Cleary v Gosford City Council

JUDGMENT

1 This appeal was lodged against council's refusal of a development application for a boundary realignment between neighbouring lots at Lots 50 and 51 Daley Ave, Daleys Point. The issues identified for the appeal are summarised as:

• Non-compliance with the minimum subdivision lot size development standard in the Gosford Planning Scheme Ordinance (GPSO),
• Whether the SEPP 1 objection to the development standard should be allowed,
• Whether the proposal is consistent with the pattern of subdivision and character of the immediate area,
• Implications for the approved boatshed on lot 114 to be built due to conflicts with the proposed subdivision,
• Public submissions.

2 In response to these issues, the parties agreed to Mr T Moody being the Court appointed planning expert. He undertook a detailed assessment of the proposal, resulting in his conclusion that the subdivision would result in a positive environmental outcome, notwithstanding the breach of the development standard relating to lot size.

3 Consequently, the parties now agree to consent orders.

The Site.

4 The subject properties are known as Lot 50 and 51 in DP 5562 and are located on the southern side of Daley Ave, Daleys Point. Lot 50 has an area of 1701 sq m and Lot 51 has an area of 1726 sq m. Both properties contain single dwelling houses.

5 The site is bound by Daley Avenue to the north, Brisbane Water to the south and private properties to the west and east. It is irregular in shape and has a southern aspect with a slope of approximately 39%. The site contains a number of large eucalypt trees.

6 The surrounding properties in the immediate vicinity of the site generally have similar size, shape and slope to the waterfront. These surrounding properties contain single dwelling houses and ancillary structures.

7 The proposed boundary realignment is to create the following new lots:

• Lot 501 with an enlarged area of 2098 sq m.
• Lot 502 with an area of 1302 sq m and reduced length of water frontage.

8 Both lots have frontages to Daley Ave. Lot 502 will retain access to the foreshore of Brisbane Water and the existing timber jetty via a 2m wide pedestrian access handle on the northern side of the site.

9 The proposed Lot 501 is to accommodate the boat shed previously approved on Lot 114 (DA 25793/2004).

10 Gosford Planning Scheme Ordinance (GPSO). Both properties are zoned 9 (c) Restricted Development (Steep Land) under this GPSO. Clause 30 AAA(2) states:

"that the Council shall not grant consent to the subdivision of land zoned number 9 (c) unless the area of any allotment to be created by the subdivision is not less than 1,850 sq m."

11 State Environmental Planning Policy No 1 -Development Standards

12 State Environmental Planning Policy No 71 - Coastal Protection

13 DCP 155 - Single Dwellings & Ancillary Structures

14 DCP 159 – Character

15 Local Government Act 1993 - Section 89

16 Rural Fires Act 1997

17 In addition to the planning assessment by Mr Moody, detailed objections were lodged on behalf of the neighbouring property owners from Nos 96 and 112 Daleys Avenue. They were given the opportunity to present oral evidence at the site inspection. The objections include:

• Uncertainty about the future of subdivision proposal; In this regard the objection is that insufficient details of future building on the new allotments have been provided. As such, it does not satisfy the planning principle in Parrott v Kiama [2004] NSWLEC 77, which states that:
  "a subdivision application should provide constraints on future building when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impact on neighbours is likely and needs careful design to minimise them."

18 However it seems to me that the current subdivision application can be distinguished from the facts in that case because there are existing dwellings on each of the proposed new lots. Consequently, the environmental impact is assessable, relative to the realignment boundary and this proposal does not involve any building alterations that are likely to have a significant impact on the neighbours. Any future building on the new lots will be subject to the merit assessment, based on the prevailing controls at that time.

19 Insofar as the subdivision is likely to affect the approved boatshed due to its proximity to the new common boundary, the conditions of consent cover this by requiring surrender of the development consent prior to issue of a subdivision certificate.

20 Notwithstanding, Lot 501’s non-compliance with the minimum area requirement of 1850 sq m, it still has an area of 1302 sq m, which should provide reasonable flexibility for any proposed new dwelling to maintain an area with reasonable impacts on the neighbouring property. Therefore, I do not consider the lack of detail concerning future development of the new allotments warrants rejection of this subdivision application.

• Challenges to the Court appointed experts assessment; This objection relates to aspects of Mr Moody's support for the proposal because it is likely to result in a "positive environmental outcome". According to Mr Moody, this outcome is likely because the approved boatshed consent at No 114 is to be surrendered and accordingly the proposed subdivision layout will most likely only allow 1 to shed, instead of potentially 2 for the existing lot layout. He considers this a better outcome for the waterfront area.

21 Against this, the objector contends that:

"As acknowledged in the report by the word ‘ likely’, there is no guarantee that only 1 boat shed would result. In the absence of any plans from the Applicant for the design of a new boatshed(s), the fundamental basis for the recommendation generally Court is completely undetermined and invalidated.”

22 In my assessment, this subdivision is more likely to restrict opportunities for 2 boatsheds to be achieved, which currently exists and I consider this consistent with the planning controls to restrict development of the waterfront. Accordingly, I do not consider the objector speculation about future boatsheds should result in the refusal of this proposal because the merits of any detail of any boatshed application would be assessed against the prevailing controls in the future.

• Negative impact of proposed development on objectors and locality; This objection relates to some concerns about shared access for Lot 502 to the waterfront.
• 23 However the proposal is clear in that Lot 502 has a 2m wide battleaxe handle to the waterfront, which is not subject to any rights of way with the adjoining lot. I am not satisfied that this objection is substantiated, so as to warrant rejection of the proposal.
• SEPP 1 objection is not well founded; This submission is that the SEPP 1 objection does not pass the Winton tests, basically because it is similar to the previous objection, which was not allowed. Also, that the single expert has not applied the correct test for the reasonableness of compliance on the proposal.

24 However, I deal with the SEPP 1 objection separately.

• Precedent and impact on property values;

25 Insofar as concerns were expressed about precedence arising from the approval of the subdivision, no substantive evidence was presented to the Court about other similar proposals, whose approval would be inconsistent with the planning controls. From my consideration of the existing development in this neighbourhood, it is unlikely other similar opportunities exist. Likewise, no substantive evidence was presented regarding depreciation of land values and accordingly I give this little weight.

26 Whilst Mr Moody supports the proposal, the primary hurdle concerns the acceptability of the SEPP 1 objection to the minimum subdivision lot size. I note that neither of the existing lots 51 (area – 1726 sq m) or 52 (area – 1701 sq m) comply with the development standard of 1850 sq m. However the subdivision would create a complying Lot 501 (area – 2127 sq m) and the non complying Lot 502 (area – 1302 sq m).

27 By reference to the following Winton tests:

Test 1 . The minimum area requirement of 1850 sq m for subdivision in cl 30AAA of the GPSO is a development standard.

Test 2 . Whilst the objectives of this development standard are not stated in the GPSO, the objections states:
"The objective of Zone No 9 (c) is to ensure that buildings for residential use of land in the zone identified as being steep or unstable are suitably located and constructed.

It can be assumed that based on the objective of the zone the underlying objective of the minimum lot size is control density of development and to ensure that allotments are of an adequate size to accommodate the location and construction of single dwelling houses including the provision of ancillary structures and proper amenity, having regard to the restrictive characteristics of the particular site including the slope of the land and location of native vegetation and to allow for development of the land that will be consistent with the desired future character of the area as contained in DCP 159…”

28 In the absence of any challenge, I accept this interpretation of the underlying objectives.

Test 3 . This test presents the following question; is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tender hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the EP&A Act?

29 The SEPP 1 objection supports the proposal on the basis that these provisions are satisfied because:

‘proper management’ and ‘ orderly and economic use’ of land is achieved by maximising the potential use of the land while ensuring that the resultant development does not have any unreasonable adverse impacts. In this case requiring compliance is not possible unless the existing lots are consolidated which would require the demolition of existing dwelling on one of the lot as dual occupancy development is not permitted.

30 Accordingly, the objection states that requiring compliance would tend to hinder the attainment of these objects.

Test 4. This test is whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The SEPP 1 objection supports the proposal on the following basis:
• the subdivision achieves improved compliance by creating lot 51;
• the proposed development is consistent with the underlying objectives because the proposed lots are adequate to accommodate the location construction of single dwelling and ancillary structures, which would comply with the requirements of DCP 159;
• the subdivision will maintain the existing 2 dwelling density;
• the subdivision facilitate any future development which is consistent with other stepped-development in this neighbourhood, as described in the desired character statement.
• considering that the original allotments were created prior to the development standard being adopted, nevertheless the proposed subdivision is consistent with the character of this neighbourhood has no new lots will be created.

Test 5 . This test requires determination of whether the objection is well founded.

31 In supporting the proposal, Mr Moody relies on the following matters:

• Providing the development consent for the boat shed is surrendered, this will most likely restrict opportunities for one future, more centrally located boatshed, thus avoiding removal of existing vegetation and resulting in a more positive environmental outcome in terms of visual impacts from waterway, than possibly 2 boat sheds arising from the to existing allotments.
• The proposal has satisfactory streetscape impacts.
• This subdivision is significantly different from the previous subdivision application in terms of the shape and areas, wherein the previous smaller allotment had a proposed area of 726.8 sq m. Accordingly, the proposed Lot 502 will still reveal a strong longitudinal pattern due to its proposed length of approximately 80m, which should be compatible with the existing longitudinal pattern.
• The proposed subdivision overcomes one of the previous reasons for rejection of that subdivision because the widened area of lot 501 at the waterfront does not allow construction of a wide-fronted dwelling, in close proximity to the waterfront.

Conclusions

32 Having considered the evidence, the submissions and undertaken a view, I note initially that this proposed subdivision incorporates some significant changes to that previously rejected by the Court. Even though the proposed Lot 501 is deficient in area, as required under cl 30 AAA, nevertheless I consider it presents a more acceptable fit with the existing subdivision pattern and objectives of the local area controls.

33 I expressed particular concern about the previous subdivision application because it allowed the possibility of the construction of a large ‘ wide-fronted’ dwelling in close proximity to the waterfront, which would not be consistent with the existing scattered location of dwellings in this neighbourhood and restrictive waterfront development provisions of DCP 159. However, the evidence presented to the Court is that this outcome cannot now be achieved because of the restrictions of the foreshore building line, the steepness of the topography adjacent to the waterfront and the limited amount of remaining area for building area. Based on this evidence, the existing pattern of scattered building locations should remain.

34 Furthermore, the subdivision shall enable the rationalisation of boat sheds on the waterfront and most likely restrict opportunities for 2 such boatsheds and instead allow only 1 centrally located boatshed. I accept Mr Moody's opinion that this is a positive environmental outcome in terms of improved visual access from the waterway and is consistent with the provisions of DCP 159, which promotes the natural character of waterfront backdrops by avoiding structures that would visibly compromise the existing bushy foreshore.

35 Insofar as objections were lodged about future development of the proposed new lots, it seems to me that the planning controls can reasonably control this, if and when such applications are submitted for a merit assessment. It is therefore not reasonable in my opinion, to refuse the application on the basis of speculation about future development. Instead, I am satisfied that this development application is for a boundary adjustment, which will retain the existing dwellings on each lot and the amenity impacts of this development are acceptable, as assessed by Mr Moody and agreed by Council in the consent orders.

36 With respect to the submissions regarding future use of the Lot 502 ‘battle-axe handle’, the approved plan is clear and the consent does not give any access entitlement to Lot 501 occupiers. Again, any changes to the use or development of this would be subject to assessment in the future.

37 Accordingly, I am satisfied that the SEPP 1 objection to the minimum lot size in Cl 30 AAA of the GPSO should be allowed and that conditional development consent granted. The conditions of consent to include surrender of the boat shed consent prior to issue of any subdivision certificate.

38 The Court orders by consent:

1. The appeal be upheld.
2. Development consent be granted to the application for boundary realignment between Lot 50 DP 5562 and Lot 51 DP 5562 subject to the conditions contained in Annexure A.
3. The exhibits may be returned except for 2, 3, A and B.

___________________

R Hussey
Commissioner of the Court
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