Sarich v Pittwater Council - [2012] NSWLEC 1225

Land and Environment Court

New South Wales

Medium Neutral Citation: Sarich v Pittwater Council [2012] NSWLEC 1225
Hearing dates: 7-8 August 2012
Decision date: 15 August 2012
Jurisdiction: Class 1
Before: Morris C
Decision:
Appeal dismissed

Catchwords: Subdivision, SEPP1 objection to minimum allotment size.
Legislation Cited: Environmental Planning and Assessment Act 1979
Pittwater Local Environmental Plan 1993;
State Environmental Planning Policy No 1 - Development Standards;
Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827
Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46;
Texts Cited: Pittwater 21 Development Control Plan - Amendment 6
Category: Principal judgment
Parties:
Eugene Sarich (Applicant)
Pittwater Council (Respondent)
Representation:
Counsel
Mr M Staunton (Respondent)
Solicitors
Mr B Hones, Hones La Hood (Applicant)
Ms N Gillies, King & Wood Mallesons (Respondent)

File Number(s): 10406 of 2012

Judgment

Eugene Sarich is a planning consultant who, on behalf of the owners of the site, lodged Development Application 384/11 with Pittwater Council on 20 October 2011 seeking consent for the subdivision of Lot 16 DP 11356 (known as 84 Nareen Parade, North Narrabeen) into two lots. The council refused consent and Sarich is appealing the decision.

The contentions in the case are whether the size of the proposed lot is appropriate, access is suitable and the application satisfies the council's planning controls for the locality.

Background and the proposal

The application is for the subdivision of Lot 16 into two lots to be known as Lots 161 and 162. Proposed lot 162 would contain the existing house, pool, garage and driveway that are currently erected on the whole of the land to which the application applies. That lot would retain the existing street frontage to Nareen Parade and have an area of 687 sqm.

Proposed Lot 161 incorporates the rear portion of the site and has no street frontage. The applicant advises that access to that lot would be by a right-of-way created over an adjoining property, No 31 Bellara Avenue however, the consent of the owner of that land has not been obtained and the owner is an objector to the application. Lot 161 would be an irregular shaped allotment, generally forming an L-shape with a width of approximately 15 m at its widest point and 8.965 at its narrowest. Each section represents approximately half the length of the proposed lot and the area would be 557.8 sqm. The applicant relies on an application under State Environmental Planning Policy No 1 - Development Standards (SEPP1) to vary the minimum lot size in respect to proposed Lot 161. The purpose of the subdivision is to create a residential allotment.

When the council determined the development application, no details of the means of accessing the site had been provided. The applicant had proposed that this issue be the subject of a deferred commencement condition and intends to seek Orders from this Court in separate proceedings to gain easements for access and services over an adjoining property.

Since that time the applicant has prepared a number of proposals for driveway access to Lot 161, all of which rely on the use of adjoining land, in particular, Lot 9 in DP242284, to provide access from Bellara Avenue. Lot 9, known as No 31 Bellara Avenue, is owned by Keenwick Pty Ltd. It is a narrow, irregular shaped allotment at the end of Bellara Avenue and, from the evidence provided on site, is the residue of a subdivision that created allotments in Bellara Avenue. It has an area of 259.25 sqm, varies in depth from 0 m to approximately 6.4 m and is approximately 73 m long, measured north to south. It shares a common boundary with No 30 Bellara Avenue for its entire eastern side boundary, adjoins the north-eastern corner of No 29 Bellara and runs partly along the western boundary of No 66 Powderworks Road. The southern boundary of Lot 9 adjoins the site with a common boundary approximately 5.2 m wide across the 8.965 m proposed northern boundary of Lot 161. The plans provided as Exhibits F and H indicate the creation of a right-of-way and easement for services over the southern part of Lot 9. The area of that easement is 85.3 sqm.

The plans before the Court are not seeking consent for any subdivision works however, in an attempt to satisfy the Court that Lot 161 can be provided with suitable access from a public road, the applicant has prepared plans which indicate the location of an access driveway off the southern side of the eastern extremity of Bellara Avenue.

The plans that are before the Court are those provided as Exhibits B, F, H and Attachment B to Exhibit 7. The purpose of those plans that show driveway access is to demonstrate that vehicle and pedestrian access to the site can be achieved. Mr Hones, for the applicant, confirms that consent is not sought for that work and that, along with the deferred commencement condition to obtain the necessary easements, he is also seeking conditions that require further development consent for access to the site and for subdivision works. The council says that the issue of access should be resolved as part of the development application, particularly with regard to the controls in clause C4.2 of the Pittwater 21 Development Control Plan which require that where an internal driveway is located within a 'right of way' or proposed 'right of way', the internal driveway is to be designed and constructed as part of the subdivision works.

The plans, which form Exhibit F and Attachment B to Exhibit 7, provide for a bitumen extension of Bellara Road in a south-easterly direction to the western boundary of Lot 9 and into that lot. A concrete layback would then provide access to a concrete driveway of varying width within Lot 9 extending to the northern boundary of proposed Lot 161. At that point the driveway would involve excavation of the site at some points and the construction of a partly suspended structure at other points to achieve grades appropriate for access to a parking bay to be provided at the southern end of the driveway.

The driveway within Lot 161 would be enclosed by a 200 mm high kerb and would run along the eastern side of proposed Lot 161, located 500 mm from the site's eastern property boundary and varying distances from the common boundary with No 29 Bellara Avenue, approximately 300 mm where a turning bay is provided and 5.065 m from the edge of the driveway kerb. A parking space 3 m wide and 5.5 m long is provided to accommodate one car and a 900 mm wide stairway to the east of the space would provide pedestrian access to the area in which a dwelling could be constructed. That space is setback 5m from the boundary with No 29. The turning bay would be located adjacent to the car parking space and its precise width and location is an issue of dispute between the engineers and planners. It would be 1.5 m above existing ground level.

A building envelope has been nominated. It has an area of 192.6 sqm and provides for setbacks of 1 m and 2.5 m from the eastern and western side boundaries respectively. A minimum setback of 6.5 m to the rear boundary of Lot 161 is provided.

According to the aboricultural experts, 6 of the 8 trees on proposed Lot 161 in addition to 2 trees on the adjoining property (Lot 9) and the nature strip would need to be removed.

The site and its context

No 84 Nareen Parade is located on the northern side of the roadway and slopes steeply from front to rear with a fall of 18 m. The rear portion of the allotment is heavily vegetated, as are the rear portions of lots to the east of the site. Those lots are deeper than those to the west of the site where the subdivision pattern changes and smaller lots created which share a common boundary with those lots located on the southern side of Bellara Avenue. There is also a 4 m cross fall across the site at its rear.

The locality is characterised by single and two storey detached dwelling houses erected towards the street frontage of allotments. In the case of the larger lots, these are heavily vegetated towards the rear however the smaller lots contain a dwelling house and more open backyards. There are two dual occupancy developments further to the west of the site in Nareen Parade.

The planning controls

The site is zoned 2(a) Residential "A" under Pittwater Local Environmental Plan 1993 (the LEP). The LEP does not contain zone objectives. Clause 10 of the LEP requires consent for subdivision and clause 11 applies to subdivision in residential zones. Relevant to the application are subclauses (1) and (3). These state:

(1) The aim of this clause is to create more varied allotment sizes, improve residential amenity and enhance the environment in relation to land to which this clause applies.....

(3) A person shall not subdivide land within Zone No 2 (a) or 2 (b) generally south of Mona Vale Road, Ingleside and Mona Vale, unless:

(a) each allotment with road frontage created by the subdivision will have an area of not less than 550 square metres within Zone No 2 (a) or 2 (b), and

(b) each internal or hatchet shaped allotment created by the subdivision will have an area of not less than 660 square metres, exclusive of any access corridor and the whole of the allotment will be within Zone No 2 (a) or 2 (b).

Pittwater 21 Development Control Plan - Amendment 6 (the DCP) also applies to the application. It contains more detailed planning controls for subdivision and the development of dwelling houses. Clause A1.7 provides matters to be considered before consent is granted and requires satisfaction that a development is consistent with the LEP, the desired character of the locality and the development controls applicable to the development.

The site is located within the North Narrabeen locality and, the desired character, as defined in clause A4.11 is:

The North Narrabeen locality will remain primarily a low-density residential area with dwelling houses a maximum of two storeys in any one place in a landscaped setting, integrated with the landform and landscape. Secondary Dwellings can be established in conjunction with another dwelling to encourage additional opportunities for more compact and affordable housing with minimal environmental impact in appropriate locations. Any dual occupancy dwellings will be located on the valley floor on land that has less tree canopy coverage, species and habitat diversity and fewer other constraints to development. Any multi unit housing will be located within and around commercial centres, public transport and community facilities. Retail, community and recreational facilities will serve the community.

Future development is to be located so as to be supported by adequate infrastructure, including roads, water and sewerage facilities, and public transport.

Future development will maintain a height limit below the tree canopy and minimise bulk and scale. Existing and new native vegetation, including canopy trees, will be integrated with the development. Contemporary buildings will utilise façade modulation and/or incorporate shade elements, such as pergolas, verandahs and the like. Building colours and materials will harmonise with the natural environment. Development on slopes will be stepped down or along the slope to integrate with the landform and landscape, and minimise site disturbance. Development will be designed to be safe from hazards.

The design, scale and treatment of future development within the North Narrabeen commercial centre on Pittwater Road will reflect the status of the centre as the 'gateway' to Pittwater through building design, signage and landscaping, and will reflect principles of good urban design.

A balance will be achieved between maintaining the landforms, landscapes and other features of the natural environment, and the development of land. As far as possible, the locally native tree canopy and vegetation will be retained and enhanced to assist development blending into the natural environment, and to enhance wildlife corridors.

Heritage items and conservation areas indicative of the Guringai Aboriginal people and of early settlement in the locality will be conserved.

Vehicular, pedestrian and cycle access within and through the locality will be maintained and upgraded. The design and construction of roads will manage local traffic needs, minimise harm to people and fauna, and facilitate co-location of services and utilities.

It is also located in Area 1 of the Council's Dual Occupancy map and Flora and Fauna Habitat Enhancement Category 2 and Wildlife Corridor under the council's Natural Resource layer. Section B2.2 and B4.4 of the DCP call up controls for larger lot sizes and additional consideration of environmental impacts for these sites.

Sections B6.2 (Access Driveways and Works on the Public Road Reserve), B6.4 (Internal Driveways), C4.2 (Land Subdivision - Access Driveways and Off-Street Parking Facilities), C4.7 (Land Subdivision - Amenity and Design) and D11 North Narrabeen Locality are all relevant to the application.

As stated at [18], the DCP, in recognition of environmental, visual and residential amenity attributes of areas 1 and 2 on the Dual Occupancy map, calls for larger allotments in some areas, including the area within which the site is located. The DCP accepts these exceed the minimum standards prescribed in the LEP. That area contained in the DCP controls is a minimum allotment size of 1200 sqm and minimum width at the building line of 16 m.

The outcomes sought under the DCP in regard to the subdivision controls are:

Achieve the desired future character of the locality.
Maintenance of the existing environment.
Equitable preservation of views and vistas to and/or from public/private places.
The built form does not dominate the natural setting.
Population density does not exceed the capacity of local and regional infrastructure and community services.
Population density does not exceed the capacity of local and regional transport facilities.

The issues

The contentions in the case are:

Inadequate lot area and lot width;
Application does not include satisfactory vehicular and pedestrian access to proposed Lot 161;
Unacceptable environmental and amenity impacts.

The evidence

The hearing commenced on site and evidence was heard from 3 objectors, all owners of properties immediately adjoining the site. The issues raised by those persons were:

Application relies on use of land owned by objector who is not prepared to sell or grant any right-of-way as it is their intention to develop the allotment for residential purposes and to encumber the land will prejudice its development potential;
Concerns in relation to geotechnical suitability of the site and drainage impacts to adjoining properties;
Any dwelling constructed within the proposed building envelope would have adverse amenity impacts on adjoining properties, particularly in relation to overlooking, loss of privacy and outlook;
Proximity of driveway and turning bay to living area and outdoor spaces will adversely impact on the amenity of those areas;
No agreement from the owner of the land over which the access to the land is proposed has been obtained.

The council did not press the issue of geotechnical assessment or drainage as it was satisfied with the additional information provided in an updated Geotechnical Report in accordance with directions of the Court and the proposed method of collection of stormwater by way of easement to Nareen Parade.

Expert evidence was provided by:

Applicant Council

Town planning Mr E Sarich Mr G Edgar

Aboricultural Mr H Taylor Mr G Paroissien

Traffic Mr S McMillan Mr T Rogers

Lot size

The experts agree that proposed Lot 161 is an internal lot and lot 162 is a road frontage lot and that the site is located south of Mona Vale Road, Ingleside and Mona Vale so the provisions of clause 11(3) of the LEP apply.

Applying the provisions of clause 11(3), the minimum area for a road frontage lot, being 550 sqm is met by Lot 162 however, the area of proposed Lot 161, at 557.8 sqm does not comply with the 660 sqm minimum required under clause 11(3)(b) for internal lots. That area excludes any access corridor.

Whilst Mr Sarich agrees that Lot 161 is an internal lot, he does not agree that 660 sqm is the applicable minimum lot size under the LEP. He says that it should be treated as a street frontage allotment because it has the same form, shape and size as a street frontage allotment, is not being subdivided in the traditional sense for a small residential subdivision where access needs to be gained from the same street as the front lot and that the development represents a relatively unique situation where access can be achieved to Lot 161 from a public road to the rear of the site. He concludes the area of Lot 161 would comply with the 550 sqm for road frontage lots and therefore it is not necessary to lodge an objection to the minimum lot size development standard.

Mr Edgar disagrees and says Lot 161 is an internal lot and irrespective of what attributes it might be perceived as having, it does not have street frontage and can therefore only be regarded as an internal allotment. Consequently, he says, with a proposed area of 557.8 sqm, Lot 161 requires a well-founded SEPP 1 objection to the minimum lot size development standard to allow the grant of consent.

Findings in relation to minimum lot size.

I agree with Mr Edgar that Lot 161 is an internal allotment and the provisions of clause 11(3)(b) apply. That is because it has no direct road frontage to any road. In the event that the applicant succeeds in its application to obtain the necessary easements over Lot 9, those easements will provide access to Lot 161 by a right-of-carriageway. The necessary driveway to be constructed within that right-of-way will have a length of at least 17 m through Lot 9 and then a driveway of some 22 m within Lot 161 until access to the parking space and building envelope is obtained. The lot will not have any direct road frontage and the narrowness of that part of Lot 161 in which the proposed site access is to be provided is more akin to an access handle than to a street frontage allotment.

Lot 161 does not meet the development standard of 660 sqm, being 102 sqm less than required. Accordingly, for consent to be granted, I must, in accordance with the principles outlined in Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46, find that the applicant's SEPP1 objection is well founded. Upholding the SEPP1 objection is a precondition, which has to be satisfied before the proposed development of subdivision could be approved on a consideration of merits.

Objection to development standard

Mr Sarich prepared the necessary SEPP1 objection and it was provided as part of the council's bundle, Exhibit 2. He applies the principles in Winten and accepts the control is a development standard, that the underlying purpose or objectives of the standard are those contained in clause 11(1) of the LEP i.e. the aims of the clause, and says that, by providing flexibility in the application of the site area control, the development would be consistent with the objects of the Environmental Planning and Assessment Act 1979 (the Act) and that strict compliance with the development standard is unreasonable and unnecessary for the following reasons:

The new allotment will not be internal or a hatchet allotment but will also not technically have a street frontage. Access will be provided by the future right of carriage way over Lot 9 DP 242284.
Given that Lot 9 DP 242284 has a street frontage to Bellara Avenue and the proposed new site will rely on this for access it is considered that application of the requirements for an internal or battleaxe allotment would be unreasonable.
The proposed allotment, which will have a total area of 557.8 sqm, complies with the development standard for an allotment with a street frontage and will be adequate for the development of a dwelling house.

It is arguable whether or not the proposed lot should be treated as a street frontage allotment or an internal or hatchet allotment. In our opinion, the site will display more characteristics of a street frontage allotment than a hatchet allotment such as it site width and should be treated as a street frontage allotment. The site area complies with the minimum lot sizes for street frontage lots.

Applying the considerations of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827, Mr Sarich says that the objectives of the standards are met and cites the three objectives of the control and says they are met for the following reasons:

More varied allotment sizes. The precinct displays a variety of allotment sizes and shapes as is evident from Figure 2. The new allotment will not be unusual having regard to the existing subdivision pattern.
Improved residential amenity. Presently, the site is underutilised which has led to the degradation of the rear part of the site (both visual and physical). It is difficult to access and manage from the lower part of the site due to the difference in levels. The subdivision will provide one additional allotment which can support a future dwelling house. Once developed the site will be properly utilised and managed thereby improving residential amenity for the adjoining sites. The subdivision represents the orderly and economic use of land.

Mr Sarich says that compliance with the development standard would prevent the reasonable and orderly subdivision of a large allotment which would defeat the objectives of the control if not permitted. He does not contend the application of the standard has been abandoned by the council and considers the zoning is relevant to the application of the development standard.

Mr Edgar agrees that the provisions of clause 11 of the LEP are development standards but does not agree that it is appropriate the Court uphold the objection to the minimum lot size for Lot 161. Similarly, he applies the principles in Wehbe but arrives at the opposite conclusion to Mr Sarich. Mr Edgar says that it is not acceptable to merely ague that proposed Lot 161 would add to the existing variety of lot sizes and shapes in the precinct and the proposed lot is not unusual in this context. He says that satisfaction of this aim must be within the context of the nature of the controls stipulated in the clause which fix minimum lot sizes based on the attributes of the newly created lots, specifically, their location within the local government area and whether or not they have street frontage.

In regard to the second aim of the development standard, Mr Edgar again disagrees with the propositions of Mr Sarich and says that the applicant has given no real consideration to residential amenity impacts and concludes there are numerous unacceptable impacts including the unacceptable visual impact of the elevated driveway and parking structure, likely overshadowing impacts and privacy impacts, excessive tree removal and inadequate curtilage for replacement planting, excessive site coverage and inadequate landscaped area.

Mr Edgar say the third aim is not met as the development would not enhance the environment because of the extent of driveway, parking structure and building envelope would create the antithesis of a landscaped environment and the structure would completely visually dominate this portion of the site and its immediate surrounds. He says the aim is not merely to protect the environment but to enhance it and submits this is not achieved by the development.

Mr Edgar's Statement of Evidence (Exhibit 3) provides further reasons why the SEPP1 objection should not be supported.

Findings in relation to the SEPP1 objection

It is interesting to note that the development standard the subject of the proceedings is the same development standard considered by the Chief Judge in Whebe. The standard has not changed since that decision and there are a number of similarities in the case to those considered however, His Honour's decision had regard to the provisions of clause 11(2) rather than 11(3).

Having regard to the evidence provided and in particular, the guidance from Preston CJ in Wehbe I conclude that the SEPP 1 objection is not well-founded. This is because, following the tests established, I prefer the evidence of Mr Edgar with regard to the objectives of the clause and find that the applicant has failed to demonstrate those objectives are met. I follow the finding His Honour at [65] and concur with Mr Edgar, that the issue of lot size has to be considered on the basis of the Pittwater local government area and where the site is within a particular locality rather than adopting Mr Sarich's approach of comparing the sub-sized lot to lots within the vicinity of the site. The latter approach is dealt with at [63] where His Honour states:

The first stated aim of the clause establishing the development standard, clause 11, is "to create more varied allotment sizes". The original SEPP 1 objection states that because granting consent would result in an allotment size at variance to the standard, this aim would be achieved. However, viewing the aim in this way would lead to an absurdity. On this construction, only departure from, and not compliance with, the development standard fixing the minimum allotment size could achieve the aim of the clause to create more varied allotment sizes. The standard would have no work to do.

The second aim is "to improve residential amenity". Mr Sarich says that it is difficult to access and manage the land within proposed Lot 161 and that once the site is developed it will be properly utilised and managed thereby improving residential amenity for the adjoining sites. Mr Edgar says that the associated impacts from such work would detrimentally impact the residential amenity. I agree. There is nothing in the SEPP1 objection that, applying the principles in Wehbe, demonstrates that the proposed subdivision will result in the level or degree of improved residential amenity that would be afforded by allotments that complied with the minimum 660 sqm, nor does the objection establish that the level of amenity for occupants or adjoining owners as a result of a dwelling constructed on proposed Lot 161 is equal to or better than the residential amenity that would result from an allotment that conforms to the minimum allotment size of 660 sqm. Accordingly, I am not satisfied that the applicant has discharged the onus of establishing the development standard to "improve residential amenity" has been achieved.

The third objective is to "enhance the environment". I do not accept Mr Sarich's proposition that the removal of weed species from the currently unkept portion of the site and the construction of a dwelling in that location, with appropriate landscaping, will enhance the environment is justification that the aims of the development standard are met. There is more work to do and that is to examine the issue in the context of the 2(a) and 2(b) zone south of Mona Vale Road and demonstrate that resultant development would result in a superior outcome than that which would occur on a 660 sqm allotment. This has not occurred. The application results in the removal of the majority of trees from the rear of the site and trees from adjoining land and I am not satisfied that the smaller allotment would provide for appropriate compensatory planting as that which could occur on a lot of 660 sqm. Evidence of Mr Paroissien is that the proposal will remove feed trees for an endangered species, the glossy black cockatoo. Mr Taylor agrees.

Similar to the position noted in Wehbe at [77], I do not accept Mr Sarich's opinion that compliance with the development standard would prevent the reasonable and orderly subdivision of a large allotment, thereby defeating the objective of the control if not permitted. The area of the existing allotment is 1245.2 sqm. It could, numerically, be subdivided into two lots, which meet the minimum development standards of 660 sqm and 550 sqm however that does not take into account the need to provide driveway access to the site. As demonstrated on the plans before the Court, any access would have to be at appropriate gradients and therefore involve the use of a considerable portion of the site. I am of the opinion that it is unlikely that the site could be subdivided with access to the rear allotment from Nareen Parade and comply with the minimum allotment development standards. I also note that the owner of the site has not gone down that path. I am therefore not satisfied in this circumstance that compliance with the development standard is unreasonable or unnecessary, or the underlying objective or purpose of the control would be defeated or thwarted if compliance was required in the circumstances of the case.

It is not the applicant's position that the council has abandoned or destroyed application of the development standard nor that the zoning of the land is unreasonable or inappropriate.

For these reasons, I am not satisfied the SEPP1 objection should be upheld and accordingly, the proposed subdivision cannot be approved.

For the sake of completeness, in the interests of a quick and cheap resolution of the matter if I am found to be wrong in my conclusion, I provide a merit assessment of the application.

Access

The means of accessing the site evolved during the hearing as a result of the inadequate details provided in the indicative access plans which stopped the driveway details at a point corresponding to the extension of the kerb and gutter on the southern side of Bellara Avenue. No details were provided on how access was to be obtained from the roadway across Lot 9 to the proposed concrete layback.

Mr McMillan prepared further sketch plans, Exhibit F indicating the construction of a 4 m wide bitumen extension of the road surface within the Bellara Avenue road reservation and extending into Lot 9 to its eastern boundary and meeting with the location of the layback. That plan was prepared in the absence of survey information and that detail was provided on the second day of the hearing, Exhibit H.

The traffic experts agree that access to the proposed parking bay can be provided from Bellara Avenue at grades that are compliant with the relevant Australian Standards. They do not agree whether the grades of the proposed turning bay are appropriate. Mr Rogers says they are not as they do not meet the relevant standard however, Mr McMillan says the turning bay is part of the circulation or driveway areas and therefore, can be at the grade proposed. Mr Rogers says that because the use of the bay involves vehicles making varied movements rather than one continuous manoeuvre, the provisions of the standard apply and to achieve compliance, it would be necessary to raise the height of the bay by 200 mm or move it 2 m further south.

The turning bay in contention is shown immediately adjacent to the common boundary with No 29 Bellara and in close proximity to the living room of that dwelling. The lowest finished surface level at the drainage grate in the turning bay would be 1.5 m above existing ground level with the need for a guardrail to be installed to protect the adjoining property. No details or dimensions have been provided to allow assessment of the impacts or appearance of that guardrail on the adjoining property as it is part of the details the applicant proposes be the subject of a future development application. The experts agree that the plans before the Court are designed to accommodate an 85 percentile vehicle and that a larger vehicle would have to perform a number of movements within the driveway to access the parking bay and turning bay.

Mr Burrell submits that the applicant may not choose to follow the option shown on the plans before the Court but may seek to access a parking area to be constructed below the proposed dwelling. The traffic experts agree that this could be possible and say that the length of the driveway would have to be increased further downslope and into the building envelope and may, depending on where the turning bay is located, reduce the area available for landscaping between the building envelope and No 29.

The experts also agree that the access plans require a vehicle to enter the right-of-way from the wrong side of Bellara Avenue and would require the installation of No Stopping signs outside No 29, thereby losing one on-street, public parking space from that roadway. Mr Rogers says that it is not appropriate to lose any on street parking because there is a need to provide two on-site parking spaces and the application only provides for one. This, coupled with the loss of one public space would have the effect of putting an additional two vehicles on the street. Mr Sarich says the DCP provides for variation to the parking control and such discretion is wide ranging and should be applied in the circumstance of the case due to the slope of the land and the fact that there may be other design solutions to provide two spaces on site. Mr Edgar says that the failure to provide the necessary parking on Lot 161 means the amenity of that lot is poor and that is contrary to the aims of the minimum lot size development standard and it is not appropriate to allow any variation. He says any variation would only be appropriate where there is some sort of alternative such as a bus stop or access to a transport node, which is not the case.

Finding in relation to access

Lot 9 does not form part of the application. Without the use of that land the parties agree that there is no other means of accessing the site without demolishing the dwelling on the site. It is the applicant's intention to seek, in separate proceedings, the grant of all necessary rights and easements to provide for vehicle and pedestrian access to proposed Lot 161 and the provision of services to that lot. It is the applicant's view that deferred commencement consent should be granted on the basis of the grant of the necessary easements and the resolution of site access.

For consent to be granted to the application, I must be satisfied that proper and practical access to the site can be obtained. Whilst the plans propose access to the site across adjoining land, for which the consent of the owner has not been provided, I accept that obtaining the rights to use that land are a matter that could be the subject of a deferred commencement consent. I am not satisfied however, that the means of access to the site is appropriate. That is because the proposed means of access would require the provision of No Stopping signs in Bellara Avenue to provide access to Lot 9. Vehicles would then have to drive on the wrong side of that street to access the site. I accept the evidence of Mr Rogers that neither is appropriate.

The design of the proposed driveway cannot accommodate the full range of vehicles that may need to access the site without the need for multiple turning movements within the proposed elevated driveway. I do not believe that this is appropriate and consider it confirms the allotment is not of sufficient size of configuration for the purpose of accommodating a dwelling house. I do not consider the grade of the turning bay to be an issue that alone would warrant refusal of the application however it does go to further inadequacies of the application. The amenity impacts from the siting and construction of the suspended driveway are also unsatisfactory.

Impacts

I agree with the evidence of Mr Edgar that the proposed subdivision is not consistent with the council's planning controls, in particular those DCP provisions referred to above, and would have adverse impacts on the locality, in particular through the loss of trees, canopy and food source for endangered species, the location of driveways and turning bays in close proximity to the main living and recreation areas of the adjoining property and the siting of the proposed building envelope in a location that is likely to have significant impacts on adjoining properties, including Lot 162, in terms of overlooking, bulk and scale. It is also inconsistent with the desired character of the North Narrabeen locality.

The external impacts of the development in regard to the loss of on-street parking in Bellara Avenue also demonstrate the site is not suited to the proposed development.

Finally, the impact of the proposed right-of-way and easement for services required over Lot 9 which results in the use of one-third of that land for access is, according to the evidence of Mr Edgar, to work against orderly development of that land in the event that its owner can acquire adjoining land and incorporate that into an allotment for residential development.

Conclusion and findings

Having formed the opinion that it is not appropriate to vary the development standard contained in clause 11(3) of the LEP and reject the SEPP1 objection to that standard, the application must fail.

In addition, a merit assessment of the application demonstrates the site is not suited to subdivision as proposed.

The Orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application 384/11 for the subdivision of Lot 16 DP 11356 (known as 84 Nareen Parade, North Narrabeen) into two lots is refused consent.

(3) The exhibits, other than exhibits A, B, C, F, H and 1, can be returned.

__________________

Sue Morris

Commissioner of the Court

**********

Decision last updated: 15 August 2012

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Citations

Sarich v Pittwater Council [2012] NSWLEC 1225

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

3

Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

Wehbe v Pittwater Council [2007] NSWLEC 827

Medium Neutral Citation:	Sarich v Pittwater Council [2012] NSWLEC 1225
Hearing dates:	7-8 August 2012
Decision date:	15 August 2012
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	Subdivision, SEPP1 objection to minimum allotment size.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 1993; State Environmental Planning Policy No 1 - Development Standards;
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827 Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46;
Texts Cited:	Pittwater 21 Development Control Plan - Amendment 6
Category:	Principal judgment
Parties:	Eugene Sarich (Applicant) Pittwater Council (Respondent)
Representation:	Counsel Mr M Staunton (Respondent) Solicitors Mr B Hones, Hones La Hood (Applicant) Ms N Gillies, King & Wood Mallesons (Respondent)
File Number(s):	10406 of 2012