WEM Property Ventures Pty Ltd v Warringah Shire Council

[2011] NSWLEC 1092

Land and Environment Court

New South Wales

Medium Neutral Citation:

WEM Property Ventures Pty Ltd v Warringah Shire Council [2011] NSWLEC 1092

Hearing dates:

16-18 March 2011

Decision date:

28 April 2011

Before:

Tuor C

Decision:

1. The appeal is dismissed.

2. The development application (2010/1182) for a Community Title subdivision into 10 allotments of 132 Rose Avenue, Wheeler Heights is refused.

3. The exhibits, except Exhibit 1, may be returned.

4. No order as to costs under s 97B of the Environmental Planning and Assessment Act 1979

Catchwords:

APPEAL:- Development application - subdivision. Consistency with desired future character for the locality. Costs.

Legislation Cited:

Environmental Planning and Assessment Act, 1979

Cases Cited:

Future Space Pty Limited v Ku-ring-gai Council (2009) NSWLEC 15

Category:

Principal judgment

Parties:

APPLICANT
WEM Property Ventures Pty Ltd

RESPONDENT
Warringah Shire Council

Representation:

APPLICANT
Mr G McKee, solicitor

RESPONDENT
Mr N Eastman, barrister
APPLICANT
McKees Legal Solutions

RESPONDENT
Wilshire Webb Staunton Beattie

File Number(s):

10834 of 2010

Judgment

1. This is an appeal against the refusal by Warringah Shire Council (the council) of a development application (2010/1182) under the Environmental Planning and Assessment Act 1979 (EPA Act) for a Community Title subdivision into 10 allotments of 132 Rose Avenue, Wheeler Heights (the site).

Site and its locality

1. The site has an area of 6721sqm with a 23m frontage to Rose Avenue. It is developed with a single sandstone dwelling, detached garage and workshop and a disused stone building on the northern boundary. Rock retaining walls, rock outcrops and remnant vegetation are interspersed throughout the site. Driveway access is off Rose Avenue and there are views from the site towards Narrabeen Lagoon.

1. The site adjoins 15 allotments which front either Rose Avenue (Nos 130, 134 and 136), Alice Close (Nos 5 and 6), James Wheeler Place (Nos 20, 26, 28, 34 and 36), Bowness Street (Nos 2, 4 and 6) and Greystoke Street (Nos 41 and 43). The allotments are developed with detached dwellings, which are generally at a lower level to the allotments proposed on the site. The surrounding area is characterised by detached dwelling houses of varied styles on large allotments.

The proposal

1. The development application is for a Community Title subdivision of the site into ten allotments to facilitate future residential development. The application includes civil earthworks for construction of the access road; landscape works; associated site and excavation works and stormwater drainage works.

1. The proposed lot sizes are:

Lot 1 - community lot (private road): 1265sqm

Lot 2 - residential lot: 435sqm

Lot 3 - residential lot: 505sqm

Lot 4 - residential lot: 503sqm

Lot 5 - residential lot: 642sqm

Lot 6 - residential lot: 697sqm

Lot 7 - residential lot: 668sqm

Lot 8 - residential lot: 624sqm

Lot 9 - residential lot: 643sqm

Lot 10 - residential lot: 757sqm

Planning controls

1. The site is within the B7 Narrabeen Lakes Suburbs Locality (B7 Locality) under Warringah Local Environmental Plan 2000 (WLEP). The Desired Future Character (DFC) statement for the B7 Locality relevantly states:

The Narrabeen Lake Suburbs will remain characterised by detached style housing in landscaped settings interspersed by a range of complementary and compatible uses which are compatible with the residential nature of the locality. The land occupied by the Cromer Golf Club will continue to be used only as a recreation facility.

Future development will maintain the visual pattern and predominant scale of existing detached style housing in the locality. The streets will be characterised by landscaped front gardens and consistent front building setbacks. Unless exemptions are made to the housing density standard in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the

locality.

The spread of indigenous tree canopy will be enhanced where possible and the natural landscape, such as rock outcrops, remnant bushland and natural watercourses will be preserved. The use of materials that blend with the colours and textures of the natural landscape will be encouraged. Development on hillsides, or in the vicinity of ridgetops, must integrate with the landscape and topography.

......

1. Under cl 14(4) of WLEP 'subdivision' is Category 2 development. Clause 12(3)(b) provides that before granting consent for development classified as:

(b)Category Two or Three, the consent authority must be satisfied

that the development is consistent with the desired future

character described in the relevant Locality Statement but

nothing in a description on desired future character creates a

prohibition on the carrying out of development.

1. In addition, Clause 12(1)(a) of (WLEP) provides:

(1) Before granting consent for development the consent authority

must be satisfied that the development is consistent with:

(a) any relevant general principles of development control

in Part 4, and

1. The General Principles of Development Control in Part 4 of WLEP relevantly include Retaining unique features on the site (cl 56), Protection of existing flora (cl 58), Landscaped open space (cl 63), Private open space (cl 64), Privacy (cl 65) and Building bulk.

1. Clause 12(2) of WLEP provides:

........

(2) Before granting consent for development, the consent authority

must be satisfied that the development will comply with:

(a) the relevant requirements made by Parts 2 and 3, and

(b) development standards for the development set out in

the Locality Statement for the locality in which the

development will be carried out.

1. Clause 21 is a relevant requirement in Part 2 of WLEP which provides:

(1) Land can be subdivided so long as:

(a) The resulting allotments can be developed in

accordance with this plan, or

......

(3) In addition to other matters specified in this plan, the consent

authority must be satisfied that the proposed development is

consistent with the provisions of Schedule 7 (Matters for

consideration in a subdivision of land) before approving an

application for consent to subdivide land.

1. Schedule 7 matters for consideration include environmentally sensitive/constrained land, access, bushfire and lot dimensions.

1. The development standards set out in the Locality Statement for the B7 Locality relevantly include a maximum housing density of 1 dwelling per 600sqm of site area, excluding any access corridor. The housing density is measured by dividing the site area by the number of dwellings proposed. Other controls of relevance to the development of future dwellings on the proposed allotments include a maximum building height of 8.5m, a minimum front building setback of 6.5m, a minimum rear setback of 6m, minimum side boundary setback of 0.9m and a minimum landscaped area of 40 per cent of site area.

Evidence

1. The Court visited the site and surrounding area. A number of residents provided evidence on site or from their properties that adjoin the site. Their principle concerns were that the proposed subdivision and future housing would impact on their amenity through loss of privacy, solar access and outlook. They were concerned about the removal of trees and natural features from the site, that the access and future dwellings would not respond to the natural constraints of the site, including bushfire, and that the size of allotments was not characteristic of the area and would result in dwellings of unacceptable bulk with insufficient open space.

1. The Court heard expert evidence from:

For the council

• Ms C Brown, planner
• Ms C Mackenzie, arborist
• Mr R Rose, bushfire consultant

For the applicant

• Mr A Minto, planner
• Mr S Pittendrigh, landscape architect and arborist
• Mr T O'Toole, bushfire consultant.

Desired Future Character

1. The key disagreement between the parties is whether the proposal is consistent with the desired future character described in the Locality Statement for the B7 Locality. The relevant elements of the character statement and the main areas of disagreement relate to future development of the lots; the pattern, size and configuration of the lots; and the enhancement of indigenous tree canopy and preservation of remnant bushland . These are discussed below:

Future development of the lots

1. The Desired Future Character statement for the B7 Locality includes:

The Narrabeen Lake Suburbs will remain characterised by detached style housing in landscaped settings....

Future development will maintain the visual pattern and predominant scale of existing detached style housing in the locality. The streets will be characterised by landscaped front gardens and consistent front building setbacks

1. The experts agree that each allotment is capable of achieving a 150sqm building envelope for detached housing. However, they disagree about whether the indicative building envelopes demonstrate that future dwellings and landscaping on the allotments will be consistent with the desired future character of the locality.

1. Ms Brown considered that the allotment size, configuration and topographic features of the site would prevent the allotments being developed in accordance with WLEP and would not achieve consistency with the desired future character.

1. In particular, Ms Brown stated that the front setbacks were an average of 4m, which is inconsistent with the front setbacks of existing dwellings and does not comply with the minimum development standard for setbacks of 6.5m in the Locality Statement. In her opinion, the reduced setbacks offer little opportunity to provide landscaping between the road and future dwellings, particularly given that the setbacks also accommodate car access. The inadequate setbacks result from the inadequate depth of the allotments and the need to provide separation from the trees and topographic features of the site.

1. Mr Minto considered that the proposed subdivision layout, indicative building envelopes and concept dwelling designs demonstrate that the development will maintain the visual pattern and scale of dwellings in the locality and the street frontage of the site will be consistent with the prevailing streetscape character. He stated that the non compliances with controls, such as front setbacks, were minor and resulted from maximising tree retention. Further, the front setbacks would not be visible from outside the subdivision and were adequate to provide landscaping.

Findings - future development of the lots

1. Mr Eastman, for the council, submits that there is inadequate information to be satisfied whether the proposed lots can be developed in compliance with the development standards for the Locality (cl 12(2)(b)) or in accordance with WLEP (cl 21(1)(a)). The application is for subdivision of the site and includes indicative building envelopes and concept dwelling designs. These generally provide adequate detail, however, they indicate that due to the constraints of the site, particularly tree retention and topography, there are limited locations to place a dwelling on the lots and that variations to controls in WLEP may be required.

1. The experts agree that the lots are capable of achieving a 150sqm building envelope but that some of the proposed lot dimensions do not comply with the requirements in Schedule 7 of WLEP. Clause 21(3) requires that the subdivision must be consistent with the provisions in Schedule 7. While these non compliances are numerically minor, in some cases, particularly the depth of lots 4 and 5, the location of a future dwelling impacts on trees and reduces the front setback. Greater depth of these allotments would potentially achieve greater consistency.

1. I do not accept Mr Minto's evidence that consistency needs to be assessed primarily from the Rose Street and not from within the development itself. While variations to controls, such as the front setback, may be appropriate this would need to be assessed from both within and outside the site as to whether it achieves consistency with the visual pattern and predominant scale of existing detached style housing in the locality. The streets will be characterised by landscaped front gardens and consistent front building setbacks . From the evidence, I am not satisfied that future development of the site for detached dwellings will achieve the required consistency.

Lot pattern, size and configuration

1. The Desired Future Character statement for the B7 Locality includes:

Unless exemptions are made to the housing density standard in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality.

1. Mr Minto and Ms Brown disagreed on the predominant pattern, size and configuration of existing allotments in the locality. T hey held different opinions on the area of the locality from which the character should be derived and from which the development should be viewed.

1. Ms Brown examined the allotment sizes in the area to the north of the site and concluded that the average size is about 730sqm. Whereas the average size of the proposed allotments is 605sqm. Further, she considers that all the allotments in the development form part of the pattern of the locality. In her opinion, lots 2, 3 and 4 are considerably smaller than existing lots and the difference would be apparent from Rose Street and from within the development. Further, the size of most of the lots and their physical constraints mean that future dwellings would not achieve adequate setbacks, landscaping, amenity and retention of existing vegetation and natural features commensurate with the area.

1. Mr Minto considers that the numerical characteristics of the lots are one factor to consider but the key issue is whether the future dwellings and their lots would be compatible with their neighbours when viewed from the public street. He notes that there is no consistent subdivision pattern in the area and that the allotments vary in size. The size of allotments in the subdivision on the opposite side of Rose Street is 556sqm and those to the north of the site range from around 556sqm to over 1000sqm. In his opinion, the proposed allotments are of sufficient size to provide dwellings and tree retention consistent with existing lots and development in the locality.

1. Mr Minto considers that only proposed lot 2 would be clearly viewed in the context of adjoining lots in Rose Street. Although it is smaller than the adjoining lots, both planners agree that lot 2 can provide an appropriate streetscape outcome from Rose Street. In Mr Minto's opinion, the subdivision when viewed from the access way within the site was not critical as this was a private road. Nevertheless, he considers that the pattern, size and configuration of allotments are consistent with those in the area and that appropriate setbacks, landscaping and amenity would be achieved.

Findings - lot pattern, size and configuration

1. The numerical characteristics of the existing lots is one factor to consider when determining whether the subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality.

1. The proposed allotments comply with the housing density standard of 600m. It is not unreasonable to expect that allotments that meet this control would be consistent with the existing subdivision pattern, size and configuration. However, the predominant size of allotments in the area exceeds this control, which is a minimum requirement. The proposed allotments must be of sufficient size to respond appropriately to the site's constraints including trees, slope and rock outcrops to ensure that development of these lots will be consistent with the character sought for the locality. These constraints severely restrict the location and size of potential dwellings that can be placed on the allotments. In these circumstances, lot sizes which exceed the minimum standard would be appropriate.

1. There are a range of building types on different size allotments in the immediate locality, however, overall the character is one of dwellings in landscaped settings, albeit not only with indigenous plantings. There are also significant canopy trees, which are visible within the area, which contribute to its character. The size of the allotments proposed and the constraints of the site limit the location and size of potential dwellings. The proposed subdivision, in its current arrangement, does not achieve consistency with the desired future character described in the B7 Locality Statement and does not comply with cl 12(3)(b) of WLEP.

1. A reduction in the number of residential allotments from nine to eight would increase the size of the allotments to be more consistent with those in the area and provide more options to locate future dwellings to appropriately respond to the constraints of the site.

Enhancement of indigenous tree canopy and retention of remnant bushland

1. The Desired Future Character statement for the B7 Locality includes:

The spread of indigenous tree canopy will be enhanced where possible and the natural landscape, such as rock outcrops, remnant bushland and natural watercourses will be preserved

1. The key dispute between the parties is whether the impact on tree canopy and remnant bushland is consistent with the desired future character described in the Locality Statement for the B7 Locality.

1. An Arborial Impact Assessment prepared by Tree Wise Men (Tree Report) was submitted with the application. It surveyed the existing trees on and adjacent to the site to assess the likely impact of the proposed subdivision and propose mitigation measures. The Tree Report did not assess the likely impact of future dwellings on the site. The Tree Report concluded that of the 100 trees assessed 15 would require removal.

1. Ms Mackenzie and Mr Pittendrigh undertook further assessment of the likely impact on trees (156 trees) resulting from the subdivision, proposed building envelopes and removal of canopy (Exhibit 5). Amended plans were prepared to relocate services and other changes, which reduced the number of trees likely to be affected.

1. Final figures on the number of trees to be retained, removed or impacted were not provided. However, Ms Mackenzie prepared a plan (Exhibit 9), which illustrated the trees agreed to be removed, and additional trees that she considered to be at risk of removal due to the cumulative construction impacts. Mr Pittendrigh accepted that trees within three metres of any proposed dwelling would require removal. Ms Mackenzie agreed that the risk to some trees she had identified as being at risk of removal could be mitigated to an acceptable level with appropriate construction techniques and supervision. The experts remained in disagreement about the likely impact and success of mitigation measures on other trees, particularly T29 ( Eucalyptus botryoides ), T45 ( Angophora costata) , T48 ( Eucalyptus botryoides ), T82 ( Cupressus spp ) and T87 ( Ficus rubiginosa ). These trees are identified in the Tree Report as having a retention value of A or B.

1. Mr Minto and Ms Brown agree that the retention of Trees 29, 37, 45, 48, 49, 80, 95 and 99 is a necessary outcome to maintain the character of the site. These trees are identified in the Tree Report as having a retention value of A or B. The arborists agreed, but noted that T95 would require removal due to its proximity to the potential building on Lot 4, its low canopy and age. They disagreed on the potential risk and canopy removal of the other trees, except T80.

1. The General Terms of Approval (GTA) of the Rural Fire Service (RFS) requires:

At the issue of subdivision certificate and in perpetuity the entire property shall be managed as an inner protection area (IPA).

1. The bushfire experts have agreed that a performance based approach may be employed to reduce the need to prune the canopy of trees which overhang the dwellings. This would be implemented through a condition that provides for a s88B instrument requiring the retention of identified trees and specific design and construction of the future dwellings.

1. Ms Mackenzie considered a more appropriate response to the bushfire constraints of the site would be to seek to remove the building envelopes away from the tree canopies. She suggested the amalgamation of lots 9 and 10 would reduce the likely impact on trees 45 and 48 and the need to prune other trees or alternatively constrain the design of future dwellings. In her opinion, the extent of tree removal, canopy reduction and tree replacement was not consistent with the desired future character sought for the site.

1. Mr Pittendrigh considered that the most of the significant canopy trees identified with a retention value of A or B in the Tree Report could be retained subject to strict site protection measures and management. While he accepted that there were some deficiencies in the proposed landscape plan he considered that future planting would compensate for the loss of trees as a result of the subdivision and the future dwellings.

Findings - enhancement of indigenous tree canopy and retention of remnant bushland

1. The key disagreement between the experts is whether the likely impact of the proposed subdivision and the future dwelling houses on trees and remnant bushland is consistent with the Desired Future Character statement.

1. Mr Minto identifies 8 trees, which are potentially impacted by the proposal that it is essential to retain. He further notes that:

The retention of all other trees located outside of any identified building zone is also necessary.

1. Of these eight trees only T80 would not be removed or require ameliorative construction measures and management. The Tree Report assessed 100 trees of which 19 were identified with a retention value of A and 37 with a retention value of B. Although final figures have not been provided a significant number of these trees are agreed to be removed or there is dispute between the arborists at to whether they are at risk of removal or require significant canopy reduction. A number of trees identified as C and D in the Tree Report also require removal.

1. The performance based approach to address the requirements of the RFS and reduce canopy removal is subject to a further approval of the RFS at the time that approval for the dwellings is sought. While it may be acceptable, it places further constraints on the future design of the dwellings, which are already constrained due to the restricted location of the building envelopes and the changes in level on the site. A more appropriate response to the constraints posed by the trees and bushfire is to reduce the number of allotments and move the building envelopes away from significant trees.

1. The location of the building envelopes and the proposed conditions of consent have sought to minimise the likely impacts on the trees. However, the number of allotments proposed results in removal and impacts on trees, which is not mitigated by future planting. The number of allotment and likely future dwellings does not enhance the indigenous tree canopy or preserve the remnant bushland on the site. The proposal, in its current arrangement, does not achieve consistency with the desired future character described in the B7 Locality Statement and does not comply with cl 12(3)(b) of WLEP.

1. I accept Ms Mackenzie's evidence that the amalgamation of lots 9 and 10 and a resultant single dwelling on a larger site could move the building envelope away from T45 and T48. Further, a single dwelling on a larger lot could reduce the requirement for pruning (or alternate building design) of other trees such as T37 and T49. It may also facilitate the retention of other significant trees such as T41, T44 and T47. The amalgamation or adjustment of these lots would enable the future dwelling to be further setback from 41 Greystoke Street and reduce the potential impacts of bulk, privacy and overshadowing that may result from a future two storey dwelling due to the change in level between the site and this property.

1. The reduction in the number of residential lots from nine to eight through the amalgamation or adjustment of lots 9 and 10 into a larger allotment may also enable the adjustment of other boundaries and the access road. This could increase the size of other lots and the depth of lots 4 and 5 to enable the building envelopes to be moved further away from significant trees and adjoining dwellings.

Costs

1. The council also sought an order under s 97B of the Environmental Planning and Assessment Act 1979 for costs payable for amendments to the application. At the commencement of the proceedings, leave was granted to rely on amended plans but subject to the submissions on whether costs should be awarded to the council pursuant to s 97B.

1. The amended plans sought to address issues raised by the experts in their joint conference. The amendments are detailed in Exhibit G and can be summarised as the relocation of the sewer and stormwater services, the road way narrowed to 5m width near T45 and a revised landscape plan.

1. Section 97B provides that an applicant may file an amended application other than to make minor amendments and, if so, the Court must make an order for the payment by the applicant of those costs as set out in s 97B(2).

1. In Future Space Pty Limited v Ku-ring-gai Council (2009) NSWLEC 15, Pepper J [at 42] reviews the relevant recent authorities and sets out eight principles for assisting the determination of what may constitute minor for the purposes of s 97B. These can be summarised as:

• the question of what is minor is one of fact and degree.
• regard must be had not to the number of amendments but to their cumulative or overall effect in the context and location of the proposed development.
• where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor.
• merely because the amendments involve a change in concept does not mean that they are not minor.
• merely because the amendments do not raise an entirely new issue does not mean that they are not minor.
• merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor.
• the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor.
• an absence of evidence by the consent authority that costs will be incurred or will be undertaken by it in relation to the proposed amendments may be taken into account but it is not determinative.

1. Having regard to the matters raised in Future Space , I find the amendments to be minor. There are not a number of amendments, significant reassessment of the application was not required, the concept was not changed, new issues were not raised and the amendments were responsive to the issues raised by the arborists on the impact of the services and the road on trees and tree replacement.

1. For these reasons, an order under s 97B for costs cannot be justified in this case.

Orders

1. The appeal is dismissed.

2. The development application (2010/1182) for Community Title subdivision into 10 allotments of 132 Rose Avenue, Wheeler Heights is dismissed.

3. The exhibits, except Exhibit 1, may be returned.

4. No order as to costs under s 97B of the Environmental Planning and Assessment Act 1979

Annelise Tuor

Commissioner of the Court

Decision last updated: 28 April 2011