Sargent-Wilson & Anor v Wollongong CC
[2006] NSWLEC 726
•30 October 2006 ex tempore
Land and Environment Court
of New South Wales
CITATION: Sargent-Wilson & Anor v Wollongong CC [2006] NSWLEC 726 PARTIES: APPLICANT
Adam Sargent-Wilson & Kerrin Sargent-WilsonFILE NUMBER(S): 11376 of 2005 CORAM: Murrell C KEY ISSUES: Appeal - Development Application :- two lot subdivision, floor space ratio, building footprint, height, impact on character of area, impact on amenity of adjoining properties, canopy trees, restricted building area. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Wollongong Development Control Plan
Wollongong Local Environmental PlanDATES OF HEARING: 30/10/06 EX TEMPORE JUDGMENT DATE: 10/30/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr P. Moggah, solicitor
of Kearns & Garside with RMB LawyersRESPONDENT
Mr M. Mantei, solicitor
of Kells the Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C
30 October 2006
JUDGMENT11376 of 2005 Adam Sargent-Wilson & Anor v Wollongong City Council
1 This is an extempore judgment for a matter that commenced before me 20 June 2006. The appeal is under s 97 of the Environmental Planning and Assessment Act (the Act) against Wollongong City Council’s refusal of a development application for a two lot subdivision for the property known as 16 Blackwood Place, Woonona. The subject site is 984 square metres with boundaries of approximately 33 m and 40 m. It is an odd-shaped allotment and is accessed via Blackwood Place. There is also an access handle over part of the subject site which also serves the adjoining property.
2 The proposal is for the subdivision of the subject land into two allotments and proposed lot 161 would be approximately 532 square metres and the proposed second allotment No. 162 and known as the vacant allotment, is 451 square metres which includes the 15 m access handle from Blackwood Place such that the effective area of this lot is some 409 square metres. Nothing turns on this but it is by way of description of the subject site.
3 The subject site is surrounded to the north by residential properties that front Gahans Lane and behind the subject site there are two dwelling houses, No.s 21 and 23 Gahans Lane. On its south-western boundary the subject site of the adjoining property is known as Lot 17 Blackwood Place and it has a total area of 1133 square metres. It also has, as the subject site does, a restricted building area zone.
4 The size of the allotments that adjoin the subject site to the north are approximately 600 square metres. The allotment to the east of the subject site is approximately 700 square metres.
5 The site is within what can be classed as a relatively new residential subdivision previously an old colliery site and the area is one that has been developed with relatively large dwelling houses in comparison to the size of the allotments.
6 The subject site is elevated and is very steeply sloping from Blackwood Place to its rear northern boundary. The site also is within a couple of hundred metres of what is known as Collins Creek and there is a riparian vegetation zone within the vicinity of the creek.
7 Further to the south, overlooking to the south towards the ocean there is a low-lying area and part of this subdivision has been developed with medium density development as well as single dwelling houses.
8 The local environmental plan, the Wollongong Local Environmental Plan, (the LEP) zones the subject site 2B and the objectives of the 2B zone as contained in the LEP are:
a) to cater for a wide range of housing types, essentially domestic in scale and character;
c) to allow some diversity of activities and densities provided of a scale and height comparable to those in the locality and there is little increase in traffic generation and there will be no significant detraction from the character of the locality or the amenity of any existing or proposed development nearby.b) to allow for a range of residential densities and for urban consolidation in appropriate locations;
9 Clause 10 1(a) of the LEP allows for subdivision with consent and there is no minimum standard with respect to the size of lots created under the LEP.
10 The subject development application was advertised and the amended proposal which has come forward to the Court now was also notified to adjoining property owners and there have been a number of objections concerning the proposed development. The concerns relate to the geotechnical issues and the stability of the land in the area and this matter has been addressed by a geotechnical report and also council’s geotechnical engineer has assessed the proposed subdivision application and he is of the opinion that:
- “The report submitted with the development application gives a good description of the site conditions and demonstrates feasibility of the subdivision from a geotechnical perspective. It is noted that the property is clear of the zone of influence of known tunnelling associated with the former Black Ball Colliery. Supplementary geotechnical advice will be required to support the design of the foundation systems for any development proposed for the created lot.”
11 The other concerns from the adjoining property owners are concern to the fact that the proposed development is contrary to the covenant and contrary to the restrictive building area as shown in the original subdivision application when this part of the estate was created in 2000.
12 The adjoining owners also gave evidence to the Court in terms of the on-site hearing when the Court met on site. For the Court record Mrs Coggans of 10 Blackwood Place, was concerned that the restrictive building zone is not to be complied with and that it is contrary to the requirements of the covenant and the need for trees within the restrictive building zone.
13 Mr Moore of 29 Gahans Lane, considers the proposed development is not consistent with the peace and tranquillity and trees of the area and the restrictive covenant was to ensure that it would not be crowded out and it would create a precedent for other subdivisions.
14 Mr Murray of 27 Gahans Lane, expressed similar concerns and noted the restrictive area and that the proposed development or existing dwelling house should not be allowed in his opinion in terms of the character of the area.
15 Mr Treglown of 19 Gahans Lane, is also concerned about changes to the rules and the tree loss.
16 Ms Parolin of 23 Gahans Lane, states that her property had been purchased and designed a home consistent with the zone and believed that the restrictive building area should remain in perpetuity, that her privacy would be impacted by the proposed developments and that the flora and fauna of the area would be adversely impacted. And she is also concerned about the proximity of the proposed second dwelling on the lot to her property.
17 Mr Sayed of 25 Gahans Lane, bought the land with the restriction for the trees to remain and he is concerned that his privacy would be severely impacted.
18 Since the Court met on site the amended concept plan, that is to show a dwelling house on the subdivision, was submitted to the council and there were also objections received in respect of the amended plan. At this point I should just briefly summarise that the amended plan ensures that there is no building form at least six metres from the rear northern boundary of the subject lot whereas previously the proposed dwelling house was much closer to the northern boundary and much higher than we see in the amended plan today.
19 The properties that back onto the subject site are as I stated No.s 21 and 23 Gahans Lane. There were also objections from the other adjoining allotments in Gahans Lane in terms of the impact of the then proposed concept dwelling house in terms of its height and the interruption to the horizon and view that those dwellings that front Gahans Lane enjoy.
20 The further submissions to the amended concept plan reiterate concerns about the restrictive covenant that had been imposed on the original subdivision such that the building area was restricted within those parts shown within the then Statement of Environmental Effects submitted with the subdivision application that was approved in April 2000. The objections relate to the tree preservation within the area, overcrowding and the impact on flora and fauna.
21 The Court has been assisted in its assessment of the development application, that is the original development application and the amended proposal today, by the Court-Appointed expert Mr Lindsay Fletcher who provided a Statement of Evidence and also provided oral evidence to the Court today.
22 The Court also has the benefit of council’s Development Manager of Subdivision Mr Mark Biondich, and he has provided advice in particular in respect of the bushfire requirements for the subject site.
23 Mr Lindsay Fletcher in his overall assessment of the amended concept plan before the Court is of the opinion that the site is capable of subdivision, however he has also expressed the need to place a restrictive covenant over future development and that future development of the vacant parcel, Lot 162, should be restricted to a maximum size dwelling house of 180 square metres which equates approximately to a 0.4:1 floor space ratio (FSR). He has expressed to the Court the need to ensure for the adjoining allotment at No. 17 that the privacy of this allotment is or maintained and that any dwelling house on the newly created allotment would not be bulky or overwhelming or impose a height that is unreasonable in terms of lot 17. Mr Fletcher has indicated that the concept plan should be amended such that the dwelling in the south-western portion on the upper level in the vicinity of bedroom one be pulled back from the southern boundary by approximately one metre for the bedroom area and part of the en suite be deleted from that portion and that there be a reconfiguration of the floor space to demonstrate the setting back of that portion of the building as well as a deletion of an additional amount of floor space such that the proposed dwelling on the subject lot does not represent an overdevelopment and that it be a maximum of 180 square metres.
24 The Court has had the benefit of the site inspection and on the occasion when the Court met on site I gave a preliminary indication that it was considered that with an appropriately and sensitively designed dwelling house that the site was capable of subdivision, however the subdivision given the number of neighbours and given the subject location, the steepness of the land and its context and relationship to adjoining properties, would have to be designed sensitively to ensure that it did not create adverse impacts for adjoining properties.
25 The plan that has come before me today is clearly one that is considerably different to that which the Court originally considered on site. The Court allowed an amended plan to be submitted as part of these proceedings which the applicant took the opportunity of doing. The plans before me know I am satisfied have also been appropriately notified to the adjoining neighbours and while many of the neighbours still retain their original concerns I am satisfied that the proposed amended plan is appropriate in terms of the concept dwelling house that is now shown and any future subdivision should be tied to the concept plans and that the development should be generally in accordance with plans. There is also a need to show the restrictive building area to be created on the new lot 162 for six metre setback from the rear boundary and a three metre setback from the western boundary increasing to 4.5 metres in the vicinity of the common boundary with Lot 17.
26 In my assessment I must also be satisfied that the proposed dwelling that has been moved further away from the northern boundary and closer to Lot 17 will not unreasonably impact on Lot 17. I am satisfied that the proposed concept dwelling with the further amendments will not unreasonably impact on the residence on Lot 17. The dwellings behind that front Gahans Lane (No. 21 & 23) I am satisfied the proposed development with a building envelope and restriction in terms of height will not unreasonable impact on those properties.
27 The Court must have regard to the impacts that would be created by the dwelling as shown in the concept plan on the adjoining properties in considering the development application for the subdivision. This is very much a case where subdivision creating an additional allotment must be considered in the context of the future development. That is the final outcome in terms of whether a dwelling house could be erected which does not unreasonably impact on adjoining properties, and I am satisfied that the character of the area is not one that would be unreasonably impacted by the imposition of an additional dwelling house on Lot 16.
28 The objectives of the 2B zone must be considered in the subdivision application and the proposed subdivision of Lot 16 will cater for a wide range of housing types essentially domestic in scale and character. It does allow for a range of residential densities and it does allow for diversity in densities. The proposed allotment in my assessment is not one that will be out of character with the general pattern of subdivision within the area, subject to careful consideration and constraints in terms of an instrument as to the future built form on the subject lot. That is the size of the allotment, the size of the dwelling house is to be smaller than even allowed for by council’s Development Control Plan and its LEP in terms of 0.5:1 FSR because of the uniqueness of the property with respect to the steep topography and the adjoining properties.
29 The Court is also satisfied in terms of the objectives of the 2B zone that the scale and height is comparable to those in the locality having regard to the steepness of the site, having regard to the fact that the proposed dwelling will be significantly lower than the properties to the north. This is appropriate in the circumstances of this case to ensure that their outlook is maintained.
30 With respect to the increase in traffic generation the proposed dwelling house provides for a double garage and also a driveway clear of the access handle which can accommodate visitor parking as well. It is noted that this would not warrant refusal of the application even though it was seen as a reason as to why the adjoining property owners considered the proposed development deficient because of the demand for on-street parking, that is visitor spaces. Visitor spaces are not required in terms of council’s controls and even though the configuration with an access handle off a relatively narrow street I am satisfied that the issue of traffic generation of the proposed development and visitor parking would not warrant refusal of the application and this can be accommodated reasonably on site. Whilst parking may be one that is often a concern to local residents, the local street system does provide for the ability for visitor parking.
31 With respect to the objective no significant detraction from the character of the locality and the amenity of any existing or proposed development nearby, I am satisfied that the proposed development with the conditions that have been carefully drafted by the parties with the assistance of council and the Court appointed expert to ensure canopy trees are a part of this development when the subdivision proceeds and the development of a dwelling house on the vacant lot that it will contribute to the amenity of the area, and therefore this part of the objective of council’s 2B zone is also satisfied. The proposal in my assessment will not detract from the character of the locality and the amenity of the area.
32 By way of comment on site I observed, which I note for my judgment, that the unfortunate absence of canopy trees may be a result of not requiring canopy trees to be planted within the estate. It may also no doubt be a product at the recently new subdivision and hopefully over time it will mature with canopy trees. It seems however appropriate to the Court that specific conditions for canopy trees be imposed on both lots, that is 161 and 162, to contribute to the continued vegetation of the area and such conditions are appropriate to place on the development of open individual lots to ensure the amenity is enhanced by the provision of canopy trees.
33 With the restricted building areas I am satisfied that two to three canopy trees can be provided on the proposal and still satisfy Rural Bushfire Service’s requirement and the existing house lot can also support a canopy tree in the front setback.
34 The Court in its consideration has considered the suitability of the site for the proposed development under s 79c and I am satisfied and agree with the Court-Appointed expert that the site is one that can accommodate an additional dwelling house.
35 For the record I note that the previous restricted area with the trees were damaged during a storm event and approval was given by council for the removal of two other trees as well.
36 I also note that in drafting the restrictive covenant the tree protection was not translated or brought forward into the 88(b) instrument and clearly the tree protection zone or the restricted building area should be to protect trees. I do not believe that there is any argument in that regard however I am also satisfied by the proposed subdivision that there will be canopy trees which will substitute for what were the previous lost trees on the subject lot.
37 The issue of precedent was one that was raised by objectors and the Court in its deliberations has carefully considered precedent which is a valid matter. In terms of the merits of this application and the conditions that are now imposed I am satisfied that this two lot subdivision cannot be seen as an undesirable precedent because the lots will continue to contribute to the character of the area with the additional conditions that have now been agreed to by the applicant.
38 The conditions as proposed by the council are agreed to by the applicant and the conditions require a geotechnical report for the drainage works and other requirements as identified in the preliminary geotechnical report submitted with the application. The additional conditions drafted by the parties require ‘a restriction as to user’ to limit the size of the new dwelling house and also ensure that there will not be overdevelopment of the total subject site by also the building footprint of the existing dwelling house being restricted to what it is today on the newly created lot.
39 On the basis of the evidence to the Court, having considered carefully the objectors’ concerns and having considered the evidence to the Court I am satisfied that the proposed development is one that is worthy of approval subject to the conditions as agreed, subject to a building envelope and subject to the size of a future dwelling for the subject newly created lot.
40 Therefore on the basis of my assessment in this matter the formal orders of the Court are:
1. The appeal in respect of the property known as 16 Blackwood Place, Woonona, is upheld to the development application submitted to Wollongong City Council and as amended.
2. And shown in Exhibit A and the amended concept dwelling house in Exhibit C is approved subject to the conditions contained in Annexure ‘A’, Annexure ‘A’ being Exhibit 10 and 11.
3. The exhibits are returned to the parties with the exception of A, C, 10 and 11.
___________________
- J S Murrell
Commissioner of the Court
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