Sanna v and S v Kiama Municipal Council

[2003] NSWLEC 405

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Land and Environment Court

of New South Wales

CITATION:	Sanna V & S v Kiama Municipal Council [2003] NSWLEC 405
PARTIES:	APPLICANT Vincent and Sharon Sanna RESPONDENT Kiama Municipal Council
FILE NUMBER(S):	10568 of 2003
CORAM:	Murrell C
KEY ISSUES:	Development Application :- For a dual occupany - Erection of asecond dwelling
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Kiama Local Environmental Plan Environmental Planning Policy No. 1 SEPP 1
CASES CITED:	Winton Property Group Ltd v North Sydney Council (2001) NSWLEC 46; Hooker Corporation v Cripps
DATES OF HEARING:	19/11/03 and 20/11/03
EX TEMPORE JUDGMENT DATE :	11/20/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr G Gleeson, solicitor SOLICITORS Morton & Harris RESPONDENT Mr P V Moggach, solicitor SOLICITORS Kearns & Garside

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10568 of 2003 Murrell C 20 November 2003 Vincent and Sharon Sanna
Applicant
v Kiama Municipal Council
Respondent Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act against Kiama Municipal Council’s refusal of a development application for a dual occupancy development at the property known as 106 Charles Parade, Minnamurra.

2. The proposal is for the erection of a second dwelling on the allotment of land. The allotment of land is 746 m squared and approximately 12.2 m wide with a length of 61.2 metres. The subject property has frontage to Charles Avenue and it also has water frontage to the Minnamurra River. The area is one that can be generally described as low density residential development within the 2A zone of the Kiama Local Environmental Plan.

3. A site inspection was carried out with the parties yesterday and I have considered all the evidence to the Court in this matter including that of the expert witnesses.

4. On behalf of the applicant evidence was given to the Court by Mr Neil Kinnan, a consultant town planner and on behalf of the respondent Council evidence was given to the Court by Mr G Debnam, senior planning officer with the council and Mr Van Breda, a landscape officer. The proposed development is one that yields a floor space ratio of approximately 0.49:1. It is proposed that access to the dwelling on the water side be gained via a drive through under the existing dwelling at the front of the property, which is currently used as a carport.

5. There was a great deal of discussion during the proceedings about whether in fact this development constituted infill development. I am satisfied that it can be described as infill development in terms of the submissions made to me.

6. There are numerous issues in these proceedings. The more significant ones are that the proposed development does not justify a variation to the 30 m foreshore building line in terms under an assessment under State Environmental Planning Policy No.1 SEPP 1. There are a number of non-compliances with council’s controls in terms of the relevant control plans. The relevant control plans include council’s landscape plan, council’s DCP for dual occupancy for development and the Development Control Plan recently adopted by the council known as DCP 36 which is effective from 24 September 2003. This relates to building lines and foreshore building lines.

7. It was agreed during the proceedings that the foreshore building line fixed via originally council’s code or policy and now encapsulated in DCP 36. For the purposes of the LEP it is a standard, the foreshore building line and the LEP adopts the model provision definition for the fixing of foreshore building lines which can be varied from time to time and this is contained in the model provisions cl 7.

8. As I stated there was no dispute that the foreshore building line is a development standard and it requires an assessment under SEPP 1. As SEPP 1 is a threshold question I will deal with this issue first. Although in many respects the SEPP 1 assessment also overlaps or coincides with the merit assessment of the development application.

9. By way of background it was brought to the Court’s attention that a dual occupancy development had been approved for the property adjoining the subject site at 104 Charles Avenue and that was approved by the Court, by way of consent orders. I will comment later on that particular development, because no doubt people expect some sort of consistency in decision making. However, in the Court’s mind there are clearly distinguishing differences between the dual occupancy at the adjoining property and the proposal currently before the Court. It is incumbent upon the Court to assess each application on its merits, but clearly precedent is something that also is a relevant consideration.

10. SEPP 1 requires a merits assessment of an application and SEPP 1 allows for a variation of a development control if it can be satisfied that the objectives, purpose or underlying objectives of such a control are satisfied by a proposed development.

11. The respondent took the Court too a judgment often referred to with dealing with SEPP 1 objections and that is Winton Property Group Limited v North Sydney Council (2001) NSW LEC 46 and in this judgment Lloyd J referred to the case of Hooker Corporation v Cripps where he speaks about the need to identify the object or purpose of the standard and to look at the circumstances of the case. He also stated that it is not merely sufficient to point out what is described as an absence of environmental harm to found an objection and the Court must assume that the development standard has a purpose. He also stated that:


“furthermore it is now established that although the discretion conferred by SEPP 1 is not be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as contemplated by the plan making process”.


12 . As I said it was agreed as a development standard which is the first question that must be asked. The second question is to look at those underlying standards and whether compliance with that development standard is reasonable or unnecessary in the circumstances of the case and finally, is the objection well founded.

13 . SEPP 1 does provide for flexibility in the application of planning controls where strict compliance is unnecessary or unreasonable.

14 . I now turn to the objectives of or the underlying objectives of the foreshore building line. The foreshore building line as I stated, is contained in DCP 36 and foreshore building lines in the preamble to that document it is stated:

“create buffers between the foreshore and development. These buffers assist in the provision of public access along foreshores, provision and maintenance of visual amenity along the foreshore”.

15 . The DCP 36 also sets setbacks to building, not only to the foreshore, but also to the street and side boundaries. There are a number of objectives that the plan seeks to create. One being to protect the established character of a neighbourhood and a consistent view along the street and water frontage to promote an open street and waterscape. The foreshore building lines relates to a number of areas within Kiama and the objectives of the foreshore building lines are:

a) control the bulk scale and location of development at the waters edge;
b) restrict development and re-development below the foreshore building line;
c) reduce the number of structures below the foreshore building line particularly upon redevelopment of foreshore land, restore the land below the foreshore building line as far as practical to a natural state with a minimum intrusion of artificial structures; also
h) includes provide for separation between private land uses and public access along the foreshore.


16 . In granting development consent on land effected by the foreshore building line, the council may require the removal of any building or works located below the foreshore building line.

17 . 9.1 of the DCP provides for a description of the area known as Section 1 and that’s where the subject site is located. In this section we have a generally older style smaller cottages, some with boat sheds and other out buildings which have been constructed close to the river. This is distinguishable from section 2. In recognition of the existing development pattern along the river and the inherent differences between the two sections, the following criteria are applied in the assessment of development applications. And then section 1 is for the properties north of 128-132 Charles Avenue. 1. that new building work shall not reduce the existing setback to the Minnamurra River. Buildings located forward of the foreshore building line shall be limited to single storey. New building work is not to increase the bulk and scale of development as it appears from the Minnamurra River and adjoining public areas and then there are a number under item 6 referring to alterations and re-building of certain works forward of the foreshore building line. 7. There should be no alteration, extension or re-building of a building within 6 m of the high water mark.

18 . The policy does provide for a variation as does SEPP 1. SEPP 1 is the pre-eminent instrument in terms of this assessment and in terms of my assessment under SEPP 1, I have had regard to the evidence of Mr Kinnan in terms of all the evidence to the Court and the submissions made on behalf of the applicant and I have had regard to that made on behalf of the respondent council.

19 . In terms of those objectives that I have just articulated as being the underlying objectives of the development standard, the 30 m foreshore building line, I am not satisfied that the new building work will not increase the bulk and scale of the development as it appears from the Minnamurra River. I am of the opinion that the location of a dwelling between the existing boat shed and ancillary building and the existing dwelling house will increase the bulk when viewed from the Minnamurra River. I am not satisfied that the foreshore building line should be varied such that a dwelling be inserted between the existing dwelling house and the existing boat shed. Such that the setback would be some 6 m when the foreshore building line is some 30 metres. It is not the extent of the variation however that the Court must have regard to, it is the consequences of the non-compliance and whether in fact the objects or objectives of the development are satisfied.

20 . On an individual basis in terms of the objectives identified and articulated in DCP 36, I am not satisfied that the proposal would satisfy objective A3 under 9.1. On a holistic reading of the purpose of the foreshore building line, I am not satisfied that the development application warrants approval. I say this in that the proposed development will present as greater bulk to the foreshore and the Court must have regard to the cumulative impact of all the structures on the subject land. It is noted that the elevation on the plans does show the proposed single storey dwelling and the existing two storey dwelling at the rear. Also within the view from the water is the boat shed and the extended ancillary development on the foreshore. I am not satisfied that the proposed development would result in minimising a proliferation of structures and building works and it would increase the bulk in terms of not satisfying that specific objective. The general purpose of the foreshore building line whilst I have specifically addressed the individual objectives is to minimise as I said, the proliferation of structures and in many respects rationalise structures in forward of the foreshore building line and this can be gleaned from a holistic reading of the policy itself.

21 . As the application fails in terms of a SEPP 1 assessment, while it is not necessary for the Court to further assess the application I have done so because I do believe that the applicants should be provided with additional reasons as to why the Court does not consider the development satisfactory.

22 . The proposal in the Court’s opinion does represent an over development of the site. Yes, one can provide figures to show that there may be compliance in terms of the amount of landscaped area and compliance with floor space ratio, compliance with the single storey provision of the dual occupancy development control plan, but in terms of the suitability of the development for the site, it is manifested in the provision of landscaping or the adequacy of the area of landscaping is insufficient for the proposed development. A symptomatic example of where the development is one that is an over development of the site in terms of the Court’s assessment is also in terms of the interface with the 6C zone. There is no setback from the current 6C zoning which is front of the subject property. The 6C zoning is future open space and I am not satisfied that there would be an appropriate relationship for a 6C zoned public land in front of a dwelling situated right on the boundary.

23 . There was evidence to the Court that there had been a resolution of council to rezone the 6C strip of land. However, that has not proceeded to an exhibited draft plan in terms of the weight that the Court should give to such a resolution under s 79C. There is evidence to the Court that the council cannot give a timeframe for such a rezoning and that in fact two government departments have expressed concerns about rezoning the strip of 6C land to 2A.

24 . It is noted in a letter from council that the current 6C zoning is consistent with the coastal policy, whereas the 2C zoning is inconsistent. There is nothing to the Court to indicate that the rezoning is imminent or certain and as I said indeed there is not a draft plan that has been exhibited in that regard. It would be short sighted of the Court to accept that the land will be rezoned and to pre-empt any future decision or prejudice future zoning of that land.

25 . Other issues that are symptomatic of an overdevelopment and whilst this was not raised by the council, it is certainly not determinative in the Court’s view, but the access to the waterfront lot through the existing dwelling is not considered in the Court’s assessment. However, this has not been determinative in my decision as to why the application fails.

26 . There has been a great deal of analysis in terms of the wording of various instruments and controls. In particular DCP 36. We must always remember that LEP’s are secondary legislation and we must have regard a common sense interpretation of such legislation. Further down from that we have development control plans and we must have regard to the intent of these development control plans and not dissect the words in terms of what they mean. Yes, the Court must assess development applications in terms of the legal framework and I have done such in terms of the submissions that have been given to me.

27 . A merits assessment of the application in terms of s 79C, the application must also fail. As I said, I do not consider the development is suitable for the proposed site. The non-compliance with a 15 m frontage or width for a dual occupancy in itself is not fatal to this application. What the Court must look at is the total package and the constraints of the site. The site is one that has an existing dwelling at the front and that constrains a dual occupancy development on the land. Clearly council has also brought in controls after having reviewing them and assessing them in terms of existing development and considers 15 m minimum a requirement. That is not determinative of this application, but in total the application is one that manifests itself in an overdevelopment. Yes, clearly there can be departures from development control plans, but the Court must also have regard to the fact that development control plans and guidelines must be given proper genuine and realistic consideration in an assessment of the application.

28 . I however, have not found it necessary to go as far as looking at the development control plan for dual occupancy itself and other development control plans including the landscaping plan because the application in my assessment is not of sufficient merit to warrant an approval.

29 . As I stated I do believe that the applicants are interested in an assessment or an analysis in terms of other dual occupancy proposals. Firstly, I will say that the planning regime has changed in this area. There has been a new development control plan introduced for dual occupancy or amendments to that development control plan and there are other distinguishing features with respect to the development at No. 104. I say this in that 104 is a corner allotment. It does have the advantage of separate driveways which minimises the hard paved area. The proposal at that time also increased the setback from the foreshore from approximately 8.5 to 10 metres. It also has greater opportunity for landscaping and also has a lower floor space ration of approximately 0.35:1.

30 . In total when I look at that development application, it is not just the merit of that application, it is the planning regime against which it was assessed at the time. It is clear that council does have controls for dual occupancy development and that one must have regard to the 6C zoning which interfaces with the 2A zoning.

31 . In this regard I was persuaded by the evidence presented of the respondent council, that the site is not suitable for the proposed development and that it does represent an overdevelopment of the site. In terms of the SEP 1 objection, I do not consider the objection is well founded and in that regard I prefer the evidence of Mr Debnam in that the proposal seeks to erect additional structures in the form of a second dwelling house and carport forward of the foreshore building line. It seeks to retain the existing boat shed which is located partially within the land and partially within Crown land. The development proposal does not seek to reduce the number of structures forward of the foreshore building line, rather it proposes and increase in both the number of structures and the bulk and scale of development when viewed from the river and the adjacent foreshore environs.

32 . He also states to the insufficient setback to the dwelling to the adjoining dwellings. This in itself is not fatal in the Court’s assessment. It is the imposition of the dwelling setback 6 m, which is forward of dwellings on either side. The dwelling at 108 is some 7 m and the applicants’ expert has failed to take into consideration the cumulative impact of the proposal in terms of the existing boat shed and structure at the foreshore of the subject property together with the existing dwelling house on the subject land.

33 . Therefore on the basis of the Court’s assessment, the orders of the Court are:

1. The appeal in respect of the property known as No. 106 Charles Avenue, Minnamurra, is dismissed.
2. The State Environmental Planning Policy No. 1 objection to vary the foreshore building line from 30 m to some 6 m is not allowed.
3. The development application for a dual occupancy development on the above land submitted to Kiama Municipal Council, and as amended, is determined by the refusal of consent.
4. The exhibits are returned.
_________________
J S Murrell
Commissioner of the Court
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