Wilkie v Gosford City Council

[2005] NSWLEC 672

Land and Environment Court

of New South Wales

CITATION:

Wilkie v Gosford City Council [2005] NSWLEC 672

PARTIES:

APPLICANT
Mr Laurie and Mrs Tracey Wilkie

RESPONDENT
Gosford City Council

FILE NUMBER(S):

10704 of 2005

CORAM:

Brown C

KEY ISSUES:

Development Application :- subdivision - SEPPP 1 objection to lot size - whether a dwelling can be constructed - streetscape/character

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 1
Gosford Planning Scheme Ordinance

CASES CITED:

Parrot v Kiama Council (2004) NSWLEC 77;
Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46;
Julie Elise Irving v Gosford City Council, 10404 of 2003

DATES OF HEARING:

30/09/05, 30/11/05

 
DATE OF JUDGMENT: 

12/06/2005

EX TEMPORE JUDGMENT DATE:

11/30/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Hancock, agent

RESPONDENT
Ms S Duggan, barrister
SOLICITORS
P J Donnellan & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

6 December 2005

10704 of 2005 Mr Laurie and Mrs Tracey Wilkie v Gosford City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Gosford City Council (the council) of Development Application No. 23489/2004 for the subdivision of 9 Margaret Street Point Clare (the site) into two lots.

2 The appeal was heard as an On Site Hearing on 30 September 2005 however the proceedings were adjourned for the applicant to prepare concept plans for a dwelling house to show that a dwelling could be erected on the proposed vacant lot. The proceedings reconvened on site on 30 November 2005. The judgement reflects the Statement of Basic Facts, the findings given on 30 September 2005 and the Courts consideration of the additional documentation on 30 November 2005.

3 The site is Lot 33 in DP 24035. It has a frontage of 16.765 metres and a depth of 60.35 metres giving a total site area of 1011.6 square metres. The land rises from the frontage at a regular slope of around 11%. A dwelling is erected towards the rear of the site.

4 Margaret Street contains a mixture of development including medium density developments to the west of the site and on the opposite side of the street and a battle-axe allotment immediately to the east.

5 The proposal provides for the subdivision of the site to create two lots. Lot 331 is located at the Margaret Street frontage and has an area of 452.4 square metres. Lot 332 has an area of 559.2 square metres and is located towards the rear of the site and contains the existing dwelling. Access will be provided to Lot 332 from Margaret Street via a 3.5 metre wide Right of Way over Lot 331 (see Attachment 1).

6 The site is zoned 2(a) Residential under the Gosford Planning Scheme Ordinance (the Ordinance). Clause 10(3) provides that consent must not be granted unless consideration is given to the consistency of the development with the zone objectives and the ecologically sustainable development objectives in the Local Government Act 1993.

7 The zone relevant objective is:

(a) to make provision for the orderly and economic development of suitable land for a variety of low-density housing forms which are essentially domestic in scale and which have private gardens; and

8 Clause 10(4) provides consent must not be granted unless the character of the development site and surrounding area is considered.

9 Clause 30AAA(1)(b) provides that consent shall not be granted unless "not more than 10% of the allotments to be created by the subdivision have an area less than 550 square metres". An objection pursuant to State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) was lodged to show why compliance with the lot size development standard for Lot 331 is unreasonable and unnecessary in this case.

10 Development Control Plan No.112 - Residential Subdivision (DCP 112) also applies. Clause 3.1 provides objectives in relation to the arrangement of lots.

11 Development Control Plan No.155 - Single Dwellings and Ancillary Structures (DCP 155) also applies in relation to any future dwelling house proposed be erected on Lot 331. The relevant requirements relates to site occupancy, building lines, side boundary setback, rear boundary setback, car parking, height restrictions, building envelope, driveways, views and privacy.

12 Development Control Plan No. 89 - Scenic Quality (DCP 89) and Development Control Plan No. 159 Character (Amendment No. 1) (DCP 159) also apply.

13 The council filed a Statement of Issues containing seven individual issues and particulars. These can be conveniently grouped into the following main areas:

1) whether the SEPP 1 objection is well founded (Issues 3 and 4),
2) whether a dwelling can be erected on Lot 331 (Issue 5), and
3) whether the proposed subdivision is out of character with the area (Issues 1, 2 and 6).

14 The content and weight of public submissions (Issue 7) is addressed as part of the consideration of the above issues.

15 The parties agreed to the appointment of Mr Doug Sneddon as the Court appointed town planning expert. Mr Sneddon provided a report on the original application (without the concept plans for a dwelling house) and a supplementary report on the additional concept plans provided by the applicant.

16 The original SEPP 1 objection considered by Mr Sneddon was considered unacceptable as it did not satisfactorily demonstrate that strict compliance with the development standard in cl 30AAA(1)(b) is unreasonable or unnecessary in the circumstances of this case. This conclusion was based on the insufficient documentation to demonstrate the likely impacts of a dwelling erected on Lot 331 and the consistency of a dwelling with other relevant council planning controls. The Court agreed with this conclusion and an adjournment was granted for the applicant to provide the necessary documentation.

17 Mr Sneddons supplementary report addresses the additional documentation provided by the applicant. He states that the supplementary SEPP 1 objection addresses the underlying purpose of the development standard, the character of the built environment of locality, the impact on existing residential character of locality of the erection of a dwelling house on the proposed vacant lot, compliance of the concept dwelling house with the standards specified in DCP 155, compliance with the aims of SEPP 1 and the relevant objects of the Environmental Planning and Assessment Act 1979. The objection argues that the proposed development is consistent with the existing residential character and the planning objectives for the locality.

18 In consideration of the SEPP 1 objection, Mr Sneddon concludes that the SEPP 1 objection is well founded, as it would not result in the undermining of the development standard or the planning objectives of locality. On this basis any concern regarding the cumulative effect of similar developments undermining the objective of standard or the planning objectives of locality does not arise.

19 Mr Singh, a town planner employed by the council states that the additional information submitted by the applicant does not adequately addresses the cumulative impacts of the proposal, the erosion of the applicable development standard and its planning objectives and creates a lot of poor utility and amenity. Consequently, the SEPP 1 objection is not well founded.

20 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes.

21 The second question asks what is the underlying object or purpose of the standard. On this question, cl 30AAA(1)(b) does not provide any specific objectives however the parties agreed that the underlying objective is set out in Julie Elise Irving v Gosford City Council, 10404 of 2003. It states:

The underlying purpose of the standard is to satisfy the zone objectives and provided sufficient area for a house and curtilage, which is consistent with the character of the area. Furthermore…. the 10% restriction is intended to provide housing choice with some smaller lot sizes, while at the same time not creating a policy shift by allowing enclaves of smaller housing lots within a particular area.

22 The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

23 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state:

5.The objects of this Act are:
(a) to encourage –
(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) the promotion and coordination of the orderly and economic use and development of land.

24 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

25 On this issue I accept that the subdivision satisfies the underlying objective of the development standard. Clause 30AAA(1)(b) provides for the creation of lots below 550 square metres although it places a limitation on the number of these sized lots in a subdivision. The zone objective and cl 30AAA(1)(b) clearly contemplates a character with lots below 550 square metres but not to the point where they form an enclave amongst the larger 550 square metre lots. Even though there are other higher density developments in the vicinity of the site, these were approved under previous planning controls.

26 Despite the concerns of Mr Singh over the likely precedent created by the approval of the subdivision there was no evidence provided to the Court of similar applications. While precedent is a valid planning consideration, the test imposed by the underlying objective is clearly satisfied by the proposed subdivision i.e., the subdivision does not create an enclave of smaller housing lots. If further similar applications were lodged and it was found that they created an enclave of smaller housing lots then it could be argued that the subdivision was inconsistent with the underlying objective of the development standard. I am also mindful that the potential for further applications in the immediate area of Margaret Street is limited.

27 For the reasons set out in the following paragraphs I accept that additional documentation provided by the applicant supports the applicants proposition that a dwelling with an appropriate curtilage, including private gardens, can be erected on Lot 331 in a way that will not potentially impact on the amenity of adjoining residence or the streetscape.

28 If the variation to the development standard is tested against the underlying objective, I accept that compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows and that the SEPP 1 objection is well founded.

29 Mr Sneddon states that the proposed concept dwelling design is consistent with the key numerical standards and design principles in DCP 155 and as detailed in par 10. Mr Singh states that the building concept plans generally satisfy the prescriptive development controls in DCP 155. Consequently, I accept that a dwelling can be appropriately constructed on Lot 331.

30 Mr Sneddon further states that in accordance with the planning principles in Parrot v Kiama Council (2004) NSWLEC 77 he recommends the imposition of a condition restricting any future dwelling house on Lot 331 to that indicated on the plans showing the concept dwelling design. I concur with this recommendation because of the smaller than usual area of Lot 331 and the likelihood that a careful design will be required to minimise any impacts on neighbours.

31 In this regard, the council proposes a condition that seeks to limit any future dwelling to that shown in the concept dwelling design. The applicant seeks to amend this condition to provide for a design that is "generally" in accordance with this design. I accept the applicant’s submission on this condition as the application seeks only the subdivision of the land and the purpose of the concept dwelling design is to show that a dwelling can be constructed on the new vacant lot. For this reason there must be some flexibility in any future development application for a dwelling. In any event a separate development application is required and will be the tested against the provisions of DCP 155.

32 On the issue of the impact on the streetscape and character of the area, Mr Sneddon states that the proposed subdivision would be consistent with the statement of the desired character within DCP 159. In his opinion, the area will remain a low-density residential area. The proposed concept dwelling does not involve disturbing natural slopes and trees, is of low impact construction, does not involve extensive cut and fill and provides similar building lines and bulk and scale to surrounding properties. Even though the application does not seek approval of the proposed concept dwelling design, I acknowledge that a similar design would be equally acceptable in this location.

33 Pursuant to cl 10(4) and with the benefit of the site view I find that the proposal satisfactorily addresses the character of the development site and surrounding area and the relevant provisions of DCP 89 and DCP 159.

34 Pursuant to cl 10(3) I also find that the proposal is consistent with the zone objectives and the ecologically sustainable development objectives in the Local Government Act 1993.

35 Mr Pomroy of 4 Margaret Street, Ms Mohr of 6 Margaret Street and Mr Gallard of 8 Margaret Street provided oral evidence. The Court also had the benefit of a bundle of documents containing additional submissions. The concerns of the local residents are generally addressed in the consideration of the council issues with the exception of stormwater impacts and traffic. I accept that stormwater is adequately addressed by the council in the conditions and as any future dwelling will need to address on site car parking, these are not matters that could lead to the refusal or amendment of the application.

36 While not a specific issue in the proceedings, the floor space ratio (FSR) of the existing dwelling on the new lot was raised as an issue. It was agreed that the FSR was 0.54:1 compared to the DCP 155 requirement of 0.5:1. As the dwelling satisfies the minimum lot size requirement and provides adequate setbacks I accept that the variation to the FSR requirement is acceptable.

37 For the reasons in the preceding paragraphs, the Orders of the Court are:

1) The appeal is upheld.
2) Development Application No. 23489/2004 for the subdivision of 9 Margaret Street Point Clare into two lots is approved subject to the conditions in Annexure A
3) The exhibits are returned with exception of exhibits 2, 5, A and C.

____________
G T Brown
Commissioner of the Court