Weston K and v Pittwater Council

[2004] NSWLEC 540

Land and Environment Court

of New South Wales

CITATION:

Weston K & V v Pittwater Council [2004] NSWLEC 540

PARTIES:

APPLICATION
K & V Weston

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10414 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- the subdivision of three existing lots into four lots - streetscape - character - bulk and scale - landscape

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Pittwater Local Environmental Plan 1993
Draft Pittwater 21 Local Environmental Plan 1993

CASES CITED:

DATES OF HEARING:

09/09/2004

EX TEMPORE
JUDGMENT DATE :

09/09/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. Creighton, agent for the applicant

RESPONDENT
Ms H Irish, barrister
SOLICITOR
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

9 September 2004

10414 of 2004 Weston K & V –v- Pittwater Council

JUDGMENT


1 This appeal relates to a development application No. 123/04 which is for the subdivision of the three existing lots at 57 and 59 Herbert Street and 95C Cheryl Crescent, Newport, into four lots. The three existing lots are occupied with detached dwelling houses and the new lot referred to as No. 61 will facilitate the erection of a fourth dwelling house. An indicative house concept plan has been provided for this lot.

2 The calculated resulting lot sizes are as follows:
No. 61, 718 sq m,
No. 57, 700 sq m,
No. 59, 954 sq m,
No. 95C, 1012 sq m.

3 The site is very steep and access, both pedestrian and vehicular, to the dwellings at Nos. 57 and 59 is via an existing steep “zig zag” driveway from Herbert Street, which for the most part coincides with an existing right of carriageway. The driveway will provide access to the newly created lot. Access to 95C is off Cheryl Crescent.

4 The land is situated at the eastern end of a cul-de-sac and has expansive filtered views north over the Pittwater waterway.

5 The site is zoned Residential 2(a) under Pittwater Local Environmental Plan 1993 and there are no objectives associated with this zone.

6 The subdivision of land is permissible with development consent pursuant to cl. 11 of the LEP. Relevantly, cl. 11(2) sets a minimum site area of 700 sq m exclusive of any access corridor. The objective of this standard is contained in cl. 11(1) and is

“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.”

7 Also relevant to this application is draft Pittwater 21 Local Environmental Plan , which has been advertised. It has since been modified and a further certificate is to be sought to enable re-exhibition.

8 Under the draft LEP, the site is proposed to be zoned Residential Protection. This zone facilitates development of a low density character and scale, predominantly comprising one and two storey dwelling houses, which are to be integrated with the landform and landscape and not be visually prominent. Development is limited in this zone due to constraints and characteristics of such land, particularly in relation to steep slopes, visual prominence and proximity to waterways.

9 The draft LEP relevantly sets a minimum subdivision size of 1200 sq m, this site being subject to the residential protection provisions in cl. 5.3(4) thereof.

10 Also applicable to the site is Pittwater 21 Development Control Plan . This DCP also has a minimum subdivision size of 1200 sq m.

11 The outcomes sought to be achieved in relation to the subdivision of residential zoned land relate to an appropriate desired future character of the locality, maintaining the existing environment, built form not dominating the natural setting, a population density not exceeding the capacity of local and regional services and transport. The desired future character for the Newport locality in s. A 4.10 is to achieve a low density residential area characterised by one and two storey residences in a natural landscaped setting.

12 The application was advertised and six letters of objection were received. Matters of concern in these letters of objection involve impacts associated with drainage, flora and fauna but were especially concerned at the impacts of additional traffic generated by the proposal and demands for car-parking in Herbert Avenue, particularly in the context of the present heavy demand for existing parking spaces.

13 The application was refused by the council for reasons essentially relating to lot gradient, dimensions and size.

14 Expert town planning evidence was provided on behalf of the respondent by Mr J Raven and on behalf of the applicant by Mr J Boers. Additional expert evidence was provided by two Court appointed experts, Mr J Hewitt, a traffic engineer, and Mr N Skelton, an environmental scientist.

15 Whilst on site, resident objector evidence was given by Mrs Charlton of 78 Herbert Avenue and Mr Bailey of 72 Herbert Avenue, who together expressed particular concerns in relation to traffic and parking in Herbert Avenue and geotechnical matters.

16 Having visited the site and its environs and taking into account all of the evidence and the material provided to the Court, I have decided that the following are the issues which require determination by the Court:

1. Whether the lot sizes resulting from the proposal are of sufficient size, taking into account the requirements of the LEP, the draft LEP and the DCP and whether the lot configurations would be satisfactory.

2. Whether the existing driveway as modified would be satisfactory, particularly in relation to its gradient and configurations.

3. Whether a new dwelling house appropriate to the new lot and the locality is able to be designed and constructed on this lot where such dwelling would be of an appropriate scale and would be able to be integrated with the landform and landscape and would not be unduly visually prominent.

17 In relation to lot sizes simpliciter, it is clear that the proposal exhibits a compliance with the numerical requirement of the LEP. Moreover, I accept that the four resulting lots would meet the objective of the standard in cl. 11 to create more varied allotment sizes. Whilst being somewhat concerned at the extremely irregular shapes, particularly of Nos. 59 and 61, I do not accept that these configurations should, in themselves, be determinative of the application. If a dwelling house were to be erected as suggested and the subdivision completed, the only noticeable difference would be the additional house and the activities associated with it. The subdivision pattern would not be apparent.

18 Clearly the proposal in its entirety exhibits a significant non-compliance with the 1200 sq m minimum subdivision size referred to in the DCP and the draft LEP but I do not give determinative weight to this. Instead, I would give weight to the provisions, especially of the DCP and to some degree those of the draft LEP, in understanding what is being sought in terms of an appropriate form of development for this area and particularly its desired future character. I again note that this desired future character comprises a low density residential area, characterised by one and two storey residences in a natural landscaped setting. I accept that in principle at least the proposal would meet this objective and indeed having average lot sizes in excess of 840 sq m moves in the direction of the standard in the draft LEP and the DCP relative to the present standard in the LEP. However, here I recognise Mr Raven’s concern that by introducing a fourth lot this reduces the average lot size relative to the proposed new standard.

19 As for the density of development, taking into account the lot sizes as proposed, I heard no evidence to suggest that the resulting population density would exceed the capacity of local or regional services.

20 The next issue and that which I have concluded is fatal to the application arises from the likely consequences of the proposed dwelling in the context of the objectives of the subdivision standard in the LEP. I do not accept that simply constructing a dwelling house on proposed No. 61 this could not by itself improve residential amenity or enhance the environment. This is because we are here dealing with a residential zone, which anticipates residential development, particularly dwelling houses and noting that this is not a conservation zone where existing vegetation is required to be retained and protected. Instead, a balanced approach is required and I believe that this is indeed possible and that a properly and sensitively designed dwelling house could meet the applicable amenity and environmental objectives.

21 The proposed lot for No. 61 is to have an area of 718 sq m, which is just above the minimum required by the LEP. It is an awkwardly configured lot, which will have the benefit of including an existing contiguous bushland area where previously that same area extended over three separate lots. There are clear management benefits here. However, the shape of this lot and the existing vegetation on it, which according to Mr Skelton is important and warrants protection, results in there being a limited area for the erection of a dwelling which in turn would need to be relatively close to three of its boundaries. In these circumstances, I am inclined to the view of Mr Raven that the pressures resulting from a wish to take full advantage of the site and its views would place unnecessary pressures on existing vegetation to its disadvantage. Had the upper part of No. 61 been larger, greater flexibility would have been available and there would have been less pressure on the sensitive habitat which was of concern to Mr Skelton. Failure to ensure the long term protection of this vegetation would be inconsistent with the environmental objectives of the DCP in relation to the conservation and enhancement of ecological integrity, wildlife corridors and environmental significance and also the desired future character, which includes the protection of indigenous tree canopies and vegetation.

22 Taking also into account the steeply sloping nature of the site, it is clear to me that the configuration of the site is such that opportunities for the construction of a dwelling house, despite the theoretical design provided, are extremely limited. This points, in my view to a lot of insufficient size and this is borne out when one examines the theoretical design for the site and the proximity of that house to its boundaries.

23 I raised the question of the likely proximity of the two dwelling houses on Nos. 59 and 95C together with the proposed possible dwelling for No. 61 and I expect that these three dwellings would tend to be read together. This is not supportive of the low density objective associated with the likely future character of this area. It would also, as I have indicated, put pressure on existing vegetation, especially the trees and restrict the opportunity to plant additional canopy trees, resulting in built form which excessively dominates the natural setting.

24 In relation to the existing residential amenity, particularly that of Herbert Avenue, I expect that this amenity will be worsened in terms of traffic and parking but this could have been mitigated by the provision of two car-parking spaces on the site, plus a visitor parking space, but again this may have adverse consequences in relation to the desired future character of this area, because of the pressure this would place on the upper part of proposed No. 61.

25 According to Mr Hewitt, the existing driveway which presently services two dwellings will be required to service three dwellings and should therefore comply with the driveway width and gradient standards described in the DCP. For three or more dwellings, the minimum width is 5.5 m and the maximum gradient is 20%. The driveway is generally three metres wide and has gradients of between 28% and 44%. Even though he recognised that there are other steep driveways in the locality, he was concerned that flatter grades up to 25 % would provide a more satisfactory level of tolerance to enable motorists to correct unforeseen safety situations arising from driver error or mechanical failure. With the additional traffic on the driveway resulting from the proposal, such consequences become more likely.

26 Whilst Mr Hewitt suggested conditions to improve the driveway in terms of opportunities for vehicles to pass, he nevertheless believed that there should not be provided an additional lot utilising this existing driveway.

27 Taking all of these matters together results in my conclusion that:


1. The appeal should be dismissed and the development application refused.

2. Exhibits B and 12 are retained by the Court.

T A Bly

Commissioner of the Court

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