Tarnowski v Sutherland SC

[2005] NSWLEC 543

Land and Environment Court

of New South Wales

CITATION:

Tarnowski v Sutherland SC [2005] NSWLEC 543

PARTIES:

APPLICANT
Danuta Tarnowski

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

11336 of 2004

CORAM:

Murrell C

KEY ISSUES:

Development Application :- 2 lot Subdivision and dwelling house - Landscaping - Topography - Carparking - overshadowing

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2000

DATES OF HEARING:

12/04/2005, 21/07/2005 and 12/09/2005

EX TEMPORE JUDGMENT DATE:

09/12/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms D. Tarnowski - litigant in person
and
Mr C. Cochrane, surveyor

RESPONDENT
Mr C. Mathieson, solicitor
of Sutherland ShireCouncil

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

12 September 2005

11336 of 2004 Danuta Tarnowski v Sutherland Shire Council

JUDGMENT

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Sutherland Shire Council’s refusal of a development application for a subdivision of the land known as 42 Higgerson Avenue, Engadine into 2 allotments one with a site area of 912 sq m and the other 1221 sq m.

2 The matter initially commenced as an on-site hearing, however it was adjourned to allow the applicant the opportunity to submit further details on a number of issues including: drainage; stormwater; retaining walls; geotechnical information; and an amended plan and footprint of the proposed dwelling for the second lot.

3 I agree with the council officer that the circumstances of this case are that one would not allow a sub-division without all the necessary documentation because there needs to be certainty in the process both for neighbours and the council in terms of the ultimate outcome as to what is approved will be developed on the subject site.

4 The subject site is very steep in topography and it is also well vegetated and a number of significant trees must be retained in the development of the subdivision and the subsequent dwelling house.

5 It was agreed that the most appropriate way to go forward was for an indicative plan of a dwelling house, and that has been assessed by the council. There have been amendments also submitted for the dwelling house, and the ultimate design before the Court today is for a three-bedroom dwelling house. Whilst it is smaller than many dwelling houses on a commensurate size allotment, at the same time it is a dwelling house that will provide for adequate accommodation and for an adequate area of open space in the form of decks and outside area. It is noted that this subdivision on very steep land will not provide for the same extent of level open space areas as many allotments in Sydney, but the nature of the area generally is one which is of steep topography with views and outlook to the bushland and the Heathcote National Park.

6 It is important that any subsequent purchaser/owner of the subject lot will be able to see that the subdivision is tied to a dwelling house. This will provide for certainty in terms of the ultimate outcome, as I indicated earlier, and also for the surrounding residents.

7 I will say at this point in my judgment that when the Court first met on-site that there were a number of residents that gave evidence to the Court and their concerns were about intensification of the use of the right of carriageway to serve an additional allotment, and the use of the right of way during construction and the steepness of the right of way. There are proposals in place which would, in many respects, see an upgrade of the right of way with pedestrian access.

8 The neighbour on the southern side that has street frontage to Higgerson Avenue, is also concerned about the carparking space proposed for the existing dwelling, proposed near his rear boundary fence. I am satisfied, and on the advice of the experts, that the proposed parking space would not create unreasonable impacts in terms of noise disturbance from the use by a single dwelling house.

9 The property to the north of the right of way, is also serviced by the right of way and the owner is concerned about increased traffic. I am satisfied that one additional dwelling can be accommodated by the right of way, and the engineering advice of both parties confirms this. This property will also have the benefit of an enlarged turning area as shown in the subdivision plan.

10 I appreciate that residents do not welcome, or embrace, further development and change, however the role of the Court is to ensure that the impacts of any proposal are not unreasonable in terms of the existing continued amenity of residential dwellings. I am satisfied, given the size of the land, and given the amended proposal, that this can be achieved.

11 The owner of the property to the rear of the subject site closest to the new proposed dwelling also expressed concern about development of the site for an additional dwelling house and the construction noise, that would be generated. Unfortunately, construction is a part of any development and the conditions are formulated to minimise, or ameliorate adverse impacts on the amenity of adjoining residents during the construction period.

12 The proposal is one that has been given a great deal of thought and attention, and the council has positively contributed and assisted in ensuring the final outcome of this development application, including: drainage; the driveway; and the design of the dwelling will be appropriate in the context of the surrounding dwellings. Even today amendments have been suggested by council and accepted by the applicant to achieve increased solar access to the existing dwelling on the subject land, and this is important given the aspect/orientation of the dwelling.

13 It is important when one is allowing subdivisions that the amenity of adjoining dwellings, as well as the amenity of any proposed new dwelling is considered in the application, because approval of the application runs with the land, and the future owners/occupiers’ interests should be considered in an assessment of applications.

14 The conditions have been well considered by the council, and today there is a point reached whereby the conditions are accepted by the applicant. Appropriately there is to be a ‘deferred commencement’ with respect to a flood study to ensure that the drainage/stormwater is collected at the corner of the allotment such that it does not impact on any properties downstream of the subject lot, which is clearly a most important consideration and a genuine concern of adjoining landholders.

15 The size of the subject land at 2,133 sq m is a large allotment, and in my preliminary findings the Court indicated that it considered there was potential for a subdivision, however that would be subject to all of the details being carefully worked out prior to any approval being issued by the Court.

16 I am also satisfied in terms of the other issues raised including privacy and solar access that the development as amended is satisfactory. And I have also had the benefit of Mrs Pinfold’s expertise to assist in understanding the impacts of the proposed new dwelling and what could be achieved to mitigate those impacts. At the end of the day the proposed development is one that I am satisfied would be appropriate and could be accommodated on the subject land and would provide for a reasonable fit subject to the amended plan which identifies the changes that have been discussed here this afternoon. That is: to lower the area of the dwelling in one portion by some 750 mm; to provide for a sloping roof to ensure there is reduction to the trafficable area of the balcony; and the shadow diagrams to demonstrate the improved solar access to the existing dwelling in terms of the eastern elevation on the wall, or the windows into the family room area of that dwelling, and also in terms of the northern elevation.

17 It is not unusual in the Court these days to have been amended plans, and it is only with the co-operation of the council that the applicant has now achieved a result which in the Court’s assessment will be a satisfactory resolution and a reasonable outcome in terms of ensuring the amenity of adjoining residents. The impact of the proposed development will satisfactory be in environmental terms also.

18 On receipt of the amended plans and the amended shadow diagrams the Court will formally issue orders in chambers, and the orders of the Court will be:

1. The appeal in respect of the property known as 42 Higgerson Avenue, Engadine is upheld.
2. The development application submitted to Sutherland Shire Council, as amended, for subdivision of the above land and a second dwelling as shown in the amended plans, drawn by Tomaryk Design drawing No.’s KT – 001/7, KT – 002/7, KT – 003/7, KT – 004/7, KT – 008/7, KT – 006/7, KT – 007/7 all revision A and the plan of subdivision prepared by V W Cochrane dated 9 September 2005 is approved subject to the conditions contained in annexure A.
3. The exhibits are returned to the parties with the exception of: the amended plans Exhibit EE, the conditions Exhibit 18, the subdivision plan AA and the s 88 instrument, Exhibit V.

___________________

J S Murrell
Commissioner of the Court
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