Russell and Shirley Hicks v Lake Macquarie City Council
[2003] NSWLEC 306
•11/21/2003
>
Land and Environment Court
of New South Wales
CITATION: Russell and Shirley Hicks v Lake Macquarie City Council [2003] NSWLEC 306 PARTIES: APPLICANT:
Russell and Shirley HicksRESPONDENT:
Lake Macquarie City CouncilFILE NUMBER(S): 10872 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- two storey building with units - a single garage for each unit - visitor's car space - streetscape LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Draft Lake Macquarie Local Environmental Plan 2002
Lake Macquarie Local Environmental Plan 1984CASES CITED: DATES OF HEARING: 20/11/03 - 21/11/03 EX TEMPORE
JUDGMENT DATE :
11/21/2003LEGAL REPRESENTATIVES:
APPLICANT:
Daryl Gray, solicitor
instructed by
Sparke HelmoreRESPONDENT:
Grant Long, solicitor
instructed by
Lake Macquarie City Council
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10872 of 2003
21 November 2003Hoffman C
- Applicant
- Respondent
1 This is a class one appeal, No. 10872 of 2003 between Russell and Shirley Hicks and the City of Lake Macquarie in regard to the deemed refusal of DA 03/2745 for a duplex proposal on No. 23 Gommera Street Blacksmiths, being Lot 772 DP 755233.
2 The proposal was a two storey building with the units side by side, having a common wall between. There was a single garage for each unit at the front and a shared single driveway which widened at the building so each unit had a visitor’s car space at the side.
3 One unit was four bed, the other three bed. Each had a separate back yard with a common fence on the prolongation of the internal common wall. The design was almost symmetrical except for the differences in the plan layout and at the front the western side unit had a gable end to its garage roof and a porch facing the street and a simple hipped roof with a stop end gable facing the street partly shared with the other unit.
4 The eastern unit had no gable to the garage roof, a side entry porch and a more complex hipped roof form.
5 The site was 701 square metres in area with a frontage of 15.29 metres and a depth of 45.86 metres. It was rectangular and flat as were most of the lots in the locality, which was a seaside suburb. Blacksmiths also fronted the Swansea channel into Lake Macquarie.
6 The site contained an old shop that was to be demolished. The neighbours either side and at the rear of the site were single storey houses and they had all written in support of the proposal in exhibit C.
7 Opposite the site was Council parkland containing various facilities such as tennis courts, community hall and playing fields.
8 The issues in the appeal were:
1. Whether the proposed development, having regard to the provisions of the Lake Macquarie Local Environmental Plan 2002, a draft environmental planning instrument that has been placed on public exhibition and details of which have been notified to the consent authority, should be approved given that:
(b) The development is inconsistent with the draft Lake Macquarie Local Environmental Plan 2002 in that it prejudices the intentions for the zone by not providing for medium and high density housing, not encouraging development of good quality design within the zone, not encouraging the amalgamation of existing lots to facilitate well designed medium density and high density housing.(a) Lot 772 DP 755233 upon which the development is proposed is within zone 2(2) Residential Urban Living under the provisions of the draft Lake Macquarie LEP 2002 and within that zone dual occupancy development is prohibited.
3. Whether the development is in the public interest in that a draft Development Control Plan No. 1 is proposed to commence simultaneously with the making of the Lake Macquarie Local Environmental Plan 2002 , and within that Development Control Plan the performance criteria for new attached dual occupancy development require a design that portrays the appearance of a single dwelling and access, parking and car accommodation in the development that does not dominate the streetscape (Part 3.5.3 Dual Occupancy Housing attached and detached P4); and the development does not meet those performance criteria.2. Whether the proposed development will have an adverse impact on the streetscape in Gommera Street because of the dominance of the garages and paved areas in the development when viewed from Gommera Street.
9 The Court heard the respondent’s evidence from Mr J Pagan, Consultant Town Planner and the applicant’s evidence was heard from Mr G Warnes Consultant Town Planner. A summary of the evidence and issues could be framed as follows:
10 Lake Macquarie Council has carried out, over the past several years, planning studies and public consultation that has resulted in a draft Local Environmental Plan (LEP) that is currently with the Department of Infrastructure Planning and Natural Resources for a report to the Minister about its gazettal. The site and about half of Blacksmiths would be zoned Residential 2(2) if that draft LEP is gazetted and in that zone duplex development is prohibited, but single houses on single lots, and medium density flats would be permitted.
11 Also, if the draft LEP is gazetted there is draft Development Control Plan No. 1, which would then be adopted by Council. The proposal in the respondent’s evidence, would not comply with that draft Development Control Plan. The key consideration is whether the draft Local Environmental Plan is imminent and certain and should be determinative in this appeal.
12 If the draft LEP is not determinative then the question remains should the proposal be approved? Under the currently applicable Development Control Plans the proposal would comply except for its street set back, which is further back than the Council’s dimension.
13 However, the respondent believes even under the existing LEP, the provisions of the draft Development Control Plan should apply. Under it the proposal would appear as two dwellings, when the draft Development Control Plan requires such a proposal to appear as a single dwelling with garages not at the front. Garages should be towards the rear.
14 The Court finds first of all that the draft Development Control Plan has very little weight in this appeal as it cannot be adopted by Council until after gazettal of the draft Local Environmental Plan, and appropriate notification of the Development Control Plan in accordance with the Environmental Planning and Assessment Act 1979 and Regulations. The Council cannot nominate a date for adoption until gazettal of the draft Local Environmental Plan occurs.
15 There was other evidence in regard to streetscape and character of the area. Even the respondent’s expert agreed that the future character under the current LEP and DCP was one of transition from older single storey small houses to much more substantial two storey brick houses in many instances. It was notable that nearly all those shown to the Court had street-facing multiple garage doors for between two and three cars.
16 If the zoning Residential 2(2) was adopted in its current form under the draft LEP such houses would still be permissible, plus apartment buildings.
17 The proposed density and minimum lot size was such that two lots the size of the subject one would have to be amalgamated and would allow six units in a group. That is, the subject lot would provide for three dwellings of that group, whereas the proposal was for two dwellings. The densities therefore were not significantly different.
18 The existing newer houses were not dissimilar to the appearance of the proposal and a mix of those houses and medium density development would be the likely future character. The proposal was not inconsistent with that.
19 The evidence from the applicant was, and the Court accepts, that at first sighting the building would look like a single house, similar to newer large houses in Blacksmiths and only a closer look would reveal, to the casual observer, that it was a duplex.
20 In regard to the draft Local Environmental Plan, there was evidence in exhibits 17 and D of recent conversations of representatives of each party with the same officer of the Department of Infrastructure Planning and Natural Resources. There were other letters from the Department in exhibits 10, 11, 12, 13 and 14, including the s 65 certificate notification in exhibit 8. Some of these were from the same officer with whom the representatives of the parties had recent conversations, and he was the officer responsible for preparing the report to the Minister. At the most recent conversation the report was still being drafted.
21 There was strong support by the Department in support of the objectives of the planning research policy document of Council in exhibit 6 called Lifestyle 2020. But the Department was concerned that the mechanisms built into the draft Local Environmental Plan in connection with zone Residential 2(2) may not be capable of achieving the planning outcomes of exhibit 6.
22 The Court invited the parties to ask the responsible officer to come to the Court to advise of the status of the draft instrument. But the parties agreed the Court should determine issue 1 on the basis of the evidence before it. On this the respondent said the only change if any, to the Residential 2(2) zone in the draft Local Environmental Plan would be the prohibition of single houses, presumably so that the densities intended for the zone might more readily be achieved.
23 The applicant said that due to the concerns over this zone, the Court could not be assured of what the final provisions of the zoning might be or how long it would take to finally gazette the draft instrument. In any case there was a draft savings clause in the draft instrument that would enable this development application to be determined under the existing statute, Lake Macquarie Local Environmental Plan 1984, and the currently applicable Development Control Plans, and to consider the draft instrument as if it had only been exhibited but not gazetted.
24 The currently applicable Development Control Plans were Development Control Plan No. 9 - Medium Density Residential Development, Lake Macquarie Development Control Plan No. 21 - Energy efficient and Sustainable housing, and Lake Macquarie Development Control Plan No. 31 - landscape.
25 Mr Warnes had assessed the proposal under those controls and recommended its approval. Mr Pagan had assessed the proposal under draft Development Control Plan No. 1 with some references to the other Development Control Plans and recommended refusal.
26 In the light of the Court’s conclusions on draft Development Control Plan No. 1, Mr Warnes’ evidence is endorsed.
27 There were a number of test cases cited that pressed the respondent’s position that the draft Local Environmental Plan was certain and imminent and should be determinative. The applicant said, and the Court agrees, the test cases were not directly comparable to this appeal and could be distinguished. It is the particular concerns about the proposed Residential 2(2) zone that in large part makes this appeal distinguishable. The terms of that zone in any gazettal cannot be said to be certain, even if the gazettal of an overall draft Local Environmental Plan may be imminent.
28 Further the draft savings clause would, in the Court’s opinion, bring about the same conclusion that would result from this appeal, namely that the development should be approved.
29 Therefore the orders of the Court are:
1. The appeal is upheld.
2. That development consent is granted for the erection of a two storey duplex proposal at No. 23 Gommera Street Blacksmiths being Lot 772 DP 755233 as shown in drawings job No. 19042 sheets 1 of 8 to 8 of 8 inclusive, all subject to and as amended by the conditions in annexure A hereto.
4. That the exhibits be returned to the parties except exhibits 1, 2, 8, 10, 11, 12, 13, 14, 16 and 17 and exhibits B, C and D.3. That annexure A include the conditions in exhibit 2. The respondent to forward a computer disk in RTF format or an e-mail of the conditions to the Court within seven days of the date of this judgment. The conditions to include a requirement for a plan of landscaping to be approved by Council prior to the issue of any construction certificate including that the street front driveway be constructed in appropriate paving bricks and that the landscaping be maintained and replenished as necessary to the satisfaction of Council for the life of the building.
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