Thomson v Northern Beaches Council

[2021] NSWLEC 1291

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Thomson v Northern Beaches Council [2021] NSWLEC 1291

Hearing dates:

27 October 2020; 4 February 2021

Date of orders:

26 May 2021

Decision date:

26 May 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1)   The appeal is dismissed; and

(2)   The exhibits are returned, except for A and 2.

Catchwords:

DEVELOPMENT APPLICATION – subdivision of existing lot into two lots – minimum lot size – proposed lots are undersized – consideration of clause 4.6 written request

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000

State Environmental Planning Policy No 55 – Remediation of Land

Warringah Local Environmental Plan 2011, cll 4.1, 4.6

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Section 7.12 Northern Beaches Contributions Plan 2019

Warringah Development Control Plan 2011

Category:

Principal judgment

Parties:

Ron Thomson (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Sattler & Associates (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2019/379010

Publication restriction:

No

Judgment

1. Mr Ron Thomson (the applicant) seeks development consent to subdivide Lot 24 in DP 6723, known as 15 Winsome Avenue, North Balgowlah into two lots and construct a new driveway access (the site).

2. The minimum lot size for the site is 600m². The proposed lots are undersized.

3. Proposed Lot 240 containing the existing dwelling at 15 Winsome Avenue will have an area of 521.9m² (excluding the access driveway). Lot 240 will present a variation of 78m² or 13.01% from the minimum standard.

4. Proposed Lot 241, situated to the rear of Lot 240, will have an area of 540m². Lot 241 is proposed to be serviced by the access driveway that is 3.5m wide and situated adjacent to the western property boundary. Lot 241 will present a variation of 60m² or 10% from the standard.

5. The applicant submitted a written request under cl 4.6(2) of the Warringah Local Environmental Plan 2011 (WLEP) seeking to justify the contravention of the minimum lot size development standard in cll 4.1 and 4.1(3) of the WLEP 2011.

6. The development application was assessed, and a report was prepared by the Council staff recommending approval of the development. On 3 March 2019 the Northern Beaches Local Planning Panel determined that the requirements of cl 4.6 of the WLEP were not satisfied and refused consent.

7. The applicant appealed against that decision to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 2 December 2019.

Contentions

8. The Council’s first contention, in its Statement of Facts and Contentions (SOFC) dated 28 February 2020, is that the submitted written request under cl 4.6 seeking to justify the contravention of the standard in cl 4.1 of the WLEP did not demonstrate that complying with the development standard is unreasonable or unnecessary in the circumstances of the case. It also contended that there are not sufficient environmental planning grounds to justify contravening the development standard as required by cl 4.6(3) of the WLEP. On that basis it submits that an approval of the application is considered to be contrary to the public interest.

9. At the hearing, I accepted into evidence an amended written request under cl 4.6 seeking to justify the contravention of the development standard in cl 4.1 of the WLEP (Exhibit H). However, the amended request did not change the Council’s contentions and opposition to proposed development.

Outcome of the appeal

10. For the reasons that follow I am not satisfied that the amended cl 4.6 written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a). Therefore, I have not reached the state of satisfaction required by cl 4.6(4)(a)(i) so as to enliven the power to grant development consent for development that contravenes the standard, the application is refused.

The site

11. The site is located on the southern side of Winsome Avenue. It has a frontage of 15.24m to the street and an approximate depth of 70m.

12. The shape and size of the allotment is consistent with the lots adjoining at Nos 3-13 Winsome Avenue. This is apparent from the aerial photograph below taken from the Council’s SOFC. The photo also shows the different subdivision patterns on each side of Winsome Avenue.

13. A new two-storey dwelling, approved on 7 October 2016 under Development Consent No. DA2016/0907, is constructed at the street frontage of the site.

14. The rear of the site is relatively undisturbed and contains no other structures.

15. The land falls steeply from Winsome Avenue to a natural depression approximately midway down the site and then rises steeply again to the rear. This natural depression carries water from adjoining lots although it is not mapped as a watercourse.

16. The site survey shows several rock outcrops including at the rear of the site and towards the front portion of the site adjacent to the existing dwelling. There are also a number of mature trees concentrated towards the rear of the block.

The locality

17. The site is located within Zone R2 Low Density Residential under WLEP. The objectives of the zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

18. The locality is characterised by low density residential development comprising detached dwelling houses of varying ages and architectural styles. The landscape character of the area is typified by well-vegetated yards and, in the case of land on the southern side of Winsome Avenue, substantial remnant vegetation. The natural rock outcrops on the site are also present in the locality.

19. The site adjacent to the west at 13 Winsome Avenue contains a split-level dwelling house situated a short distance from the common boundary with 15 Winsome Avenue. The dwelling has two east-facing windows. A rock outcrop extends between 13 Winsome Avenue and 15 Winsome Avenue. The proposed driveway is adjacent to this boundary.

20. There are two sites adjacent to the east at 17 Winsome Avenue and 70 Serpentine Crescent. The land at 17 Winsome Avenue contains a two-storey dwelling house and outbuilding and has vehicular access from Winsome Avenue. The land at 70 Serpentine Crescent contains a two-storey dwelling house and has vehicular access from Serpentine Crescent.

Statutory framework

21. The following statutory controls are relevant to the assessment of this application:

1. Environmental Planning and Assessment Act 1979;

2. Environmental Planning and Assessment Regulation 2000 (EPA Regulations);

3. State Environmental Planning Policy No 55 – Remediation of Land;

4. Warringah Local Environmental Plan 2011;

5. Warringah Development Control Plan 2011 (WDCP); and

6. Section 7.12 of Northern Beaches Contributions Plan 2019.

22. Clause 4.1 of WLEP stipulates that the minimum subdivision lot size for the site is 600m².

4.1 Minimum subdivision lot size

(1) The objectives of this clause are as follows—

(a) to protect residential character by providing for the subdivision of land that results in lots that are consistent with the pattern, size and configuration of existing lots in the locality,

(b) to promote a subdivision pattern that results in lots that are suitable for commercial and industrial development,

(c) to protect the integrity of land holding patterns in rural localities against fragmentation,

(d) to achieve low intensity of land use in localities of environmental significance,

(e) to provide for appropriate bush fire protection measures on land that has an interface to bushland,

(f) to protect and enhance existing remnant bushland,

(g) to retain and protect existing significant natural landscape features,

(h) to manage biodiversity,

(i) to provide for appropriate stormwater management and sewer infrastructure.

23. Clause 4.1(3A) provides:

(3A) For the purposes of subclause (3), in calculating the size of a lot the area of any access corridor (including any right of carriageway, access way or other area that provides for vehicle access) is to be excluded, whether the access corridor is to be created or is in existence at the time of the application for development consent for the subdivision.

24. The WDCP contains controls relating to access driveway design (C1 Subdivision), land modification (C7 Excavation and landfill), preservation of natural features (E6 Retaining unique environmental features) and resident amenity (D3 Noise).

Jurisdiction – the written request pursuant to cl 4.6(2) of the WLEP

25. The amended written request under cl 4.6 prepared by Vaughan Milligan Development Consulting Pty Ltd (Exhibit N) sought to justify the contravention of the development standard in cl 4.1 of the WLEP by demonstrating that compliance with the standard is unreasonable or unnecessary because the objectives of the standard in cl 4.1 are achieved notwithstanding the development breaches the standard: Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe); Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [16].

26. The first objective to cl 4.1 is: “(a) to protect residential character by providing for the subdivision of land that results in lots that are consistent with the pattern, size and configuration of existing lots in the locality”.

27. In order to demonstrate that this objective is achieved the written request identified what constitutes the locality and then assessed the residential character of the locality in terms of lot pattern, size and configuration of existing lots in that locality.

28. For the purposes of cl 4.1, the written request defined the relevant locality to be the visual catchment of the subject site and surrounding area from which the site could be seen. From that perspective, it was then submitted that the residential character of Winsome Avenue and the area surrounding the site is “primarily established through viewing the street and the individual properties in the street by standing or walking in the roadway, rather than reliance on an aerial view analysis of the allotment layout of the local area”.

29. From this viewpoint, the residential character of Winsome Avenue and the immediate surrounding locality is said to be “…predominately characterised by low density single residential, dual occupancy and secondary dwelling development”. As such, the written request submitted that “…the proposed subdivision seeks to provide for an additional allotment, which will be available for further residential development, which will be inherently compatible with the existing surrounding locality and land use in the vicinity”.

30. Furthermore, in order to ascertain the pattern, size and configuration of the existing lots, the written request provided that the pattern of development should be assessed in relation to the streetscape setting of the lot and separately, in relation to the wider pattern of lot sizes and the configuration of the existing lots in the locality. In that regard, it is submitted that the immediate streetscape pattern of the existing lots in Winsome Avenue, and to the extent that Florence Court visually provides an extension of Winsome Avenue, is established by:

“…addressing the interface of the street and the existing development, which presents a regular rhythm of detached dwellings with driveway access to either parking structures at the rear or as outlined in Figure 1 & Table 1 over & Figures 2, 3, 4 & 5, often providing driveway access to a battle-axe allotment to the rear. A view of the street pattern indicates that battle-axe development is evident, with buildings visible to the rear of street front dwelling, however the total size and shape of the allotments that either face the street or are of a battle-axe configuration with access to the street is not clearly evident from the casual street view”.

31. Furthermore, it is submitted that the proposal intends to provide for an additional battle-axe allotment to the rear of the subject dwelling which will only alter the existing streetscape as viewed from Winsome Avenue by the introduction of the additional driveway access to the rear allotment. In this regard, the streetscape pattern of Winsome Avenue from any casual observer within the street is largely unaltered and given that the general size and shape of the allotment is not discernible from the street view, the streetscape pattern is unaltered irrespective of the proposed lot size.

32. The second means of assessing the pattern in the immediate locality, it is submitted is to establish the view of surrounding development that is available when looking from the rear of the dwellings in the locality. In this case the written request provides that:

“When looking south from the existing dwelling on the subject allotment, the visual catchment includes an existing dwelling immediately to the south-east at No 70 Serpentine Crescent, which stands on an allotment of 543.8m². To the west of the site, the detached double garage/shed within the rear yard of the adjacent site at No 13 Winsome Avenue, and a recently completed detached secondary dwelling in the rear yard of No 11 Winsome Avenue establishes a rhythm of development to the southern portions of the sites on the southern side of Winsome Avenue. When the subject site and its neighbours are viewed from the western, cul-de-sac end of Serpentine Crescent, (east of the subject site), the same development pattern established by the neighbouring dwellings at 17 Winsome Avenue and 70 Serpentine Crescent for detached dwellings on similar size and shaped lots will be continued by the proposed dwelling”.

33. The third means of assessing the pattern, size and configuration of the existing lots in the locality referred to in the written request is through an aerial view analysis of the surrounding subdivision pattern. In this regard, Figure 1 & Table 1 of the written request identifies the subdivision pattern of the existing allotments in the area, which presents a number of similar examples of battle-axe development, and which specifically identifies allotments which have an area less than 600m². A summary of the sizes of the surrounding lots in the similar lots in the immediate vicinity is provided below:

34. The written request submitted that the aerial analysis of the local subdivision pattern indicates that the adjoining lots to the west of the site between Nos 3-13 Winsome Avenue are anomalous to the wider development pattern and lot size in the area, with their area of 1201m² not reflecting the predominant size of land in the vicinity. The aerial view analysis also confirms that there is no common size or configuration for lots in the locality, with an eclectic mix of varied lot arrangements and shapes evident.

35. The written request states that any regular historical pattern of development in the area has been altered through the introduction of battle-axe allotments and additional built form through detached dual occupancy and detached secondary dwelling development. Furthermore, it can be assumed that any emphasis on retaining larger lots in this locality has been abandoned through the evolution of the development pattern for smaller lots with additional housing on battle-axe shaped allotments.

36. According to the written request the subdivision pattern has allowed for additional housing on allotments with a variety of sizes - which allows for affordable housing options for families in the area. The housing is affordable because houses are provided on smaller lots which are more affordable than a larger house or even the same size house on a larger lot. The request records that site has the benefit of a Complying Development Certificate (CDC2017/0046) for the construction of a detached secondary dwelling (not commenced) within the rear yard, in the location of the proposed building envelope with concept dwelling.

37. The request points out, that No 11 Winsome Avenue has recently completed the construction of a detached secondary dwelling under CDC2019/0968 within the rear yard of that site. In this regard, the battle-axe shape of the lot and the proposed layout of development within the site is considered to be consistent with the subdivision pattern, size and configuration of lots in this locality and therefore the objective to protect residential character by providing for the subdivision of land that results in lots that are consistent with pattern size and configuration of existing lots in the locality is achieved notwithstanding non-compliance with the numerical standard.

38. Given the proposed lot size is compatible with the existing subdivision pattern of its immediate neighbours to the east and on the northern side of Winsome Avenue, having regard to the Table 1 Analysis of existing lot sizes in the immediate vicinity of the site (above), and the relevant LEP & DCP objectives are satisfied, the written request states that the Court’s support of the variation to the minimum lot size control is requested in this instance.

Consideration – Objective (a) “to protect residential character by providing for the subdivision of land that results in lots that are consistent with the pattern, size and configuration of existing lots in the locality”

39. I accept that the relevant locality includes the visual catchment of the site and surrounding area from which the site can be seen. I also accept that the residential character can be appreciated from the street. However, where the relevant pattern and size and configuration of existing lots in that locality cannot be understood from the street, the aerial photograph, in the applicant’s cl 4.6 written request, provides the clearest perspective of what is sought to be preserved by objective (a) to the development standard.

40. From that view, the relevant locality can be further defined by the obvious and distinct subdivision pattern, size and configuration on each side of Winsome Avenue and the surrounding streets. As Mr Mead, the Council’s planning expert explained and I observed at the Court view, the lots from Nos 3-13 adjoining the site “…set a distinct pattern which must be central to the assessment of the proposal against the objectives for lot size” (Exhibit 3 par 1.41).

41. This distinct pattern cannot be understood from the database of properties and lot sizes presented in the applicant’s cl 4.6 written request. Not only does this table ignore the relevant allotments on the southern side at Nos 3-13 adjoining the site but includes reference to several lots, albeit in the locality and less than the minimum lot size, that are clearly located within a very different subdivision pattern on the other side of the street and beyond.

42. After considering the distinct pattern and configuration of the lots adjoining the site on the southern side of the street, I do not accept that the existence of lots having areas that are less than 600m² on the opposite side of the street are representative of a consistent pattern. Nor do I accept that the southern side of Winsome Avenue is anomalous or that there is evidence of the lot size standard being abandoned. The consistent subdivision pattern, lot size and configuration of the lots at Nos 3 -13 are intact and central to an assessment as to whether an approval of the proposal achieves the objective to “protect residential character by providing for the subdivision of land that results in lots that are consistent with the pattern, size and configuration of existing lots in the locality” notwithstanding the breach of the standard.

39. The applicant’s written request states that the aerial view analysis in Figure 1 of the request confirms that there is no common size or configuration for lots in the locality, with an eclectic mix of varied lot arrangements and shapes evident. While this may be true for part of the locality, the existing subdivision pattern on the lower or southern side of Winsome Avenue does not accord with that description. To be plain, the written request simply ignores or dismisses as irrelevant the observed existing consistent subdivision pattern with a configuration of lots in the order of 1201m² proximate to the site: the site forms part of the consistent pattern between 3 and 15 Winsome Avenue and the proposal is inconsistent with that pattern. Given the similarities in lots between 3 and 15, it is likely that approval of subdivision on the site would set a precedent for subdivision of other lots which would also be undersized.

40. While battle-axe development is a feature of the northern side of Winsome Avenue, it is not a feature of the southern side of the street. Instead, the regular historic pattern of development pertains, albeit with some detached secondary dwellings constructed in the rear. I accept that the pattern of subdivision affects siting of dwellings, relationship of those with adjoining properties, requirements for driveways (including length and the need to navigate topography of a site), access requirements and has consequent impacts on natural features of a site. Based on my observations of the site, as a result of varying the pattern of subdivision that is characteristic of adjoining properties to the west, and providing for lot sizes significantly less than the minimum requirements, the proposal fails to “protect residential character” of existing lots in the locality. The outbuildings and secondary dwellings which exist are limited in size and do not require separate car parking or street access. The existence of such structures in the locality does not support the character of subdivision proposed. Housing needs, in particular affordability, would be served by those secondary dwellings and therefore that benefit of the proposal as set out in the request is not limited to the current proposal. The opportunity for the provision of housing in accordance with the Northern Beaches Council Local Strategic Planning Statement – Towards 2040, which came into effect in March 2020 and referred to in the written request, can be accommodated elsewhere in the local government area.

41. In short, there is no demonstrated justification outlined in the applicant’s written request for changing this established subdivision pattern on the southern lower side of Winsome Avenue. The first test in Wehbe requires, in this case, the demonstration of achievement of the objective (a) of cl 4.1 notwithstanding the breach. The applicant’s written request falls short of the mark. I find that the proposed resultant undersized lots are not consistent with the pattern, size and configuration of existing lots in the locality and thereby, if approved, the residential character is not protected by this development.

42. The pattern, size and configuration of existing lots in the locality along the southern side of Winsome Avenue, which protect the residential character, is preserved. Having determined that objective (a) of the standard is not achieved it is unnecessary to consider further the applicant’s response to the contention directed to the sufficiency of environmental planning grounds to justify the claimed contravention: cl 4.6(4)(a).

43. For these reasons I am not satisfied that the written request has demonstrated that compliance with the development standard in cl 4.1 of the WLEP is unreasonable or unnecessary in the circumstances of the case.

Orders

48. As I have not reached the requisite state of satisfaction required by cl 4.6(4)(a)(i), I am not able to grant consent for the development that would contravene the development standard by operation of cl 4.6(4) of the WLEP.

49. The Court orders:

1. The appeal is dismissed; and

2. The exhibits are returned, except for A and 2.

………………………

S Dixon

Senior Commissioner of the Court

Amendments

27 May 2021 - Correction to [17] - insertion of the words "The objectives of the zone are"; and correct grammatical error in [39]

Decision last updated: 27 May 2021