Witzig Schulz Pty Ltd Trading as Witzig Schulz Architects v Kempsey Shire Council
[2007] NSWLEC 13
•12 January 2007
Land and Environment Court
of New South Wales
CITATION: Witzig Schulz Pty Ltd Trading As Witzig Schulz Architects v Kempsey Shire Council [2007] NSWLEC 13 PARTIES: APPLICANT
RESPONDENT
Witzig Schulz Pty Ltd Trading As Witzig Schulz Architects
Kempsey Shire CouncilFILE NUMBER(S): 10570 of 2006 CORAM: Hoffman C KEY ISSUES: Subdivision :- Resubdivide 2 lots into 3, erection of 2 new houses, street setbacks, height, solar access, landscaping, visual privacy, private open space, traffic safety, stormwater disposal, car parking, undersized lot. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Kempsey Local Environmental Plan 1987 (LEP 1987)
State Environmental Planning Policy No. 71 - Coastal Protection
State Environmental Planning Policy No. 55 - Remediation of Land
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No.1 - Development Standards
Crescent Heads Local Housing Strategy (DCP 2006)CASES CITED: Hooker Corporation Pty Ltd v Hornsby Shire Council (NSW LEC 2 June [1986] DATES OF HEARING: 07/11/2006
DATE OF JUDGMENT:
12 January 2007LEGAL REPRESENTATIVES: APPLICANT
Mr S Priestley, solicitor
SOLICITORS
Pickering PriestleyRESPONDENT
Mr G Underwood, barrister
Instructed by: Ms N Doney, solicitor
SOLICITORS
Cooney Harvey Doney
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hoffman C
12 January 2007
JUDGMENT10570 of 2006 Witzig Schulz Pty Ltd Trading As Witzig Schulz Architects v Kempsey Shire Council
1 This is a Class 1 Appeal No. 10570 of 2006 between Witzig Schulz and Kempsey Shire Council in regard to the refusal of a proposal to re-subdivide 2 lots into 3, keeping an existing house on one lot fronting Dulconghi Street, demolishing another on Stewart Street, Crescent Head; and erecting two new houses, one on each of the other two new lots. One would front Stewart Street and the other would front Dulconghi.
Description of Site
2 The site is legally described as Lot 2, DP 570181 - 13 Dulconghi Street and Lot 180, DP 754441 - 36 Stewart Street, Crescent Head.
3 Lot 2 is triangular in shape with an existing two storey brick dwelling whose ground floor level sits significantly lower than the road level of Dulconghi Street but with vehicular access from Dulconghi Street. The physical character of the Dulconghi Street site in particular is defined by its steep topography that permits excellent north facing views over the town centre of Crescent Head to Killick Beach and Killick Creek.
4 Lot 180 is typically rectangular in shape with an existing single storey weatherboard cottage fronting Stewart Street. The setback of this cottage from the footpath is approximately 6 m, just deeper than the average setback for adjacent dwellings of 5 m. There are a number of established significant trees on this site. Two date palms, a melaleuca and two she-oaks particularly contribute to the established landscaped character of this lot. Whilst this lot does not slope as steeply for most of its length as the rear triangular block the current single storey cottage still enjoys lovely views of town and the water from its elevated front windows.
5 The combined area of both existing lots is 1,487 sq m. There is a fall of approximately 14 m from Dulconghi Street to Stewart Street on the survey plan in Exhibit 7 over a distance of about 65 m giving an average slope of about 20%. The embankment down from Dulconghi Street to the existing house is about 40% slope. Below the embankment the slope is approximately 16%.
6 The locality is characterised by a variety of construction materials, established trees and other landscaping which dominates the hill and acts to soften roof lines and built form. Large building setbacks and articulated, broken rooflines along steep upper slopes are also characteristic.
7 The height and floor area of more recent existing surrounding development is similar to that proposed for each of the two new dwellings on the subject site.
8 The social character of Crescent Head is shaped in part by a relatively high number of absentee landlords, with approximately 40% of all dwellings in Crescent Head being rented or kept for holiday purposes. The owners of the subject development occupy the existing dwelling at 13 Dulconghi Street (and also own 36 Stewart Street). Apart from the resident owners of 38 Stewart Street the owners of all other immediately adjacent properties to 36 Stewart Street are absentee landlords.
The proposal
9 This original application was advertised in 2005, with three objections being received. Staff reported the application to an ordinary meeting of council on 15 November 2005 and recommended that the applicant be asked to amend the application, and if not, it be refused.
10 The application was unanimously refused by Council on the grounds that the proposal did not comply with DCP 22 and the proposal has issues of concern in the following areas:
- area is low density
- car parking
- topography
- high erosion potential
- an undesirable precedent would be set if approved
- minimum lot size is not complied with
- possible cumulative effect on ecologically sustainable development in the area
11 The applicant subsequently submitted a request for review of determination under s 82A of the Environmental Planning and Assessment Act 1979, which involved submission of amended plans and a written response to each of council's reasons for refusal.
12 The amended plans for the dwelling on Lot 2 (the proposed dwelling with access off Dulconghi Street) were readvertised, with three objections and one confidential objection being received.
13 The proposal still did not comply with the following standards of the draft Crescent Local Housing Strategy (DCP2006):
- 3 m side setback for 2 storey buildings
- Density of 1 dwelling per 500 sq m
- Overall height limit of 7.9 m above natural ground level
14 But the Director's report to council recommended approval of the revised development, stating that the proposal substantially complied with the 2003 DCP No. 22 and that it would be unreasonable to now require compliance with the draft DCP 2006 for Crescent Head. Clause 16A(3) of the Kempsey LEP 1987 was also cited as justification for non-compliance with the minimum lot size of 500 sq m. It makes provision for strata subdivision and cluster and dual occupancy subdivision of prior consents. It is not applicable to this development.
15 Although the proposed development complies with the density requirements of DCP No. 22, the staff said the lot size for proposed dwelling 1 does not comply with the LEP minimum of 500 sq m and a SEPP 1 objection is required.
16 Staff recommended approval of the SEPP 1 objection on the basis that compliance with the 500 sq m LEP standard was considered unreasonable in the circumstances.
17 Council resolved to refuse the amended application because the application does not comply in relation to the size of the block, open space and the general character of the village of Crescent Head.
The amended issues of 18 August 2006
1. The lot size for dwelling 1 is contrary to clause 16(1)(d) of Kempsey LEP1987 .
Particulars
(a) The subject site is zoned Residential 2(a) under the Kempsey Local Environmental Plan . The minimum area of subdivision is 500 sq m per lot.
(b) The proposed area of Lot 1 is 402 sq m (at the Hearing amended to 455 sq m).
2. The development does not comply with clause 9(3) of the Kempsey LEP 1987.
Particulars.
(a) The objective of the 2(a) Zone is to provide areas for low density residential development. Clause 9(3) of the LEP states that:
(b) A cluster development would be inconsistent with Clause 9(3) of the Kempsey LEP 1987.
"Unless otherwise provided by this plan, Council shall not grant consent to the carrying out of development on land to which this plan applies unless Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out".
3. The Development does not represent cluster housing.
- (a) Clause 16A(3) of Kempsey LEP 1987 only applies to cluster housing/medium density development and cannot be used to justify the proposed subdivision as a cluster development is inconsistent with the Kempsey LEP 1987.
- Particulars
(a) Private open space for dwelling 1 and dwelling 2 has a slope greater than 1 in 8. An acceptable gradient is not achieved for an area of useable private open space at ground level.
(b) Proposed private open space is not 'private' - the eastern neighbour's west facing windows overlook the proposed deck for dwelling 1 and the rear yard of dwelling 1 will be overlooked by proposed dwelling 2.
(d) Landscaping - no landscape plan has been submitted and the plans appear to propose the removal of at least 5 significant trees on site, namely two date palms, a paper bark and two casuarina (she-oaks). These trees are significant elements of the quality of landscaped character of the site and the locality and should be preserved.(c) Visual Privacy - overlooking of living spaces in buildings and private open spaces for dwelling 1 and their eastern neighbour has not been avoided. Window modification and screening has not been proposed.
- (a) Side boundary setbacks of 2.7 m and 1.7 m on eastern side proposed and 2 m on the western side. A 3m minimum average is required for 2 storey development within a minimum of 1.5 m.
(b) No details of any retaining walls have been provided.
(c) The existing cross over and driveway to Stewart Street will need to be widened. Furthermore, the area of pavement which ranges in width from 4.3 to 8m has not been minimized to increase the area of front setback available for landscaping.
(d) No landscaping plan or plan which confirms the location of all existing trees on the site has been submitted.
(e) Visual privacy between the proposed and existing eastern dwelling will not be achieved under the current proposal. The substantial full length east facing windows and the 'L' shaped front deck will overlook the adjoining property to the east and this dwelling's west facing windows. This deck is located as close as 1.1 m from the subject eastern boundary and the neighbouring dwelling to the east is only setback from its western boundary by 1 or 1.5m and has kitchen windows orientated directly onto the deck and primary living area of the proposed dwelling at No.36. A separation of 2 - 2.5m between the front deck and the adjacent dwelling's windows is considered unreasonable and a situation that will result in loss of privacy for occupants of both the existing and proposed dwellings.
- Incorporation of screening and use of translucent glass may not be favoured to resolve this privacy issue given that the extent of deck and glass has been proposed to maximize beach and water views.
- The rear backyard for the Stewart Street dwelling is again adequately dimensioned and terracing could be incorporated to ensure a reasonably flat ground level, but proximity to four extensive decks off the proposed new dwelling off Dulcoonghi will mean that this backyard is also not suitable as private open space. In fact the substantial deck off the main living area for the proposed rear dwelling will be setback only 3.5 m from the rear yard of the Stewart Street dwelling. In total the rear dwelling will overlook the backyard of the Stewart Street dwelling with 4 large elevated decks setback only 3.5 to 6 m from the proposed boundary.
(h) Non-compliance with the low density development standards of the Crescent Head DCP2006.
- (i) Density of proposed Lot 1 will exceed one dwelling per 500m2.
(ii) Garage to proposed dwelling 2 is not setback a minimum of 5m.
(iii) Dwelling 2 has not been provided with 2 stacked off street visitor space.
Particulars6. Objection under SEPP 1 is not well founded as the proposed development is not consistent with the minimum subdivision area of 500 square metres or the minimum allotment size of 500 square metres for a single dwelling.
- a) Kempsey Local Environmental Plan 1987 clause 9(3) and clause 16(1)(d).
b) Crescent Head DCP 2006.
c) DCP 22
18 The following statutory instruments and relevant provisions apply to the proposed development:
State Environmental Planning Policy No. 71 - Coastal Protection
19 There are no matters for consideration under SEPP 71 which would preclude further consideration of the proposed development.
State Environmental Planning Policy No. 55 - Remediation of Land
20 The residential history of the site indicates that no land remediation would need to be undertaken for the construction of any new dwellings on the site.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
21 A complying BASIX certificate for each of the proposed two new dwellings has been provided to council.
State Environmental Planning Policy No.1 - Development Standards
22 A SEPP 1 objection to the proposed Lot 1 subdivision area of 402 sq m is required and has been submitted by the applicant. State Environmental Planning Policy 1 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 or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.
23 Clause 7 of SEPP 1 states:
"Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6."
24 Cripps J in Hooker Corporation Pty Ltd v Hornsby Shire Council (NSW LEC, 2 June 1986) says:
"it has been established that in order to maintain an objection that compliance with a standard is unreasonable or unnecessary, it is first necessary to discern the underlying object or purpose of the standard. To found an objection it is then necessary to satisfy the court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. It is now established that it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection. Furthermore, the objection is not advanced in my opinion by an argument that the development standard is inappropriate in respect of a particular zoning. The court must assume a development standard in a planning instrument has a purpose. Furthermore, SEPP 1 is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part Ill of the EP&A Act 1979."
Kempsey Local Environmental Plan 1987
25 Kempsey LEP 1987 contains the following development standard for the Residential 2(a) zone: Minimum subdivision area of 500 sq m.
26 The objective of the 2(a) zone is to provide areas for low density residential development. Clause 9(3) of the LEP states that:
- "Unless otherwise provided by this plan, Council shall not grant consent to the carrying out of development on land to which this plan applies unless Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out."
- Development Control Plans
Crescent Head DCP 2006
27 The controls in this DCP seek to:
- Ensure consistency and fairness in the assessment of development applications
- Encourage development which minimises impacts on the environment
- Optimise dwelling yields within the capacity of the land and the precinct
28 The following tables detail DCP 2006's character statements.
Crescent Head Landscape Character :
RETAIN FEATURES THAT CONTRIBUTE- Trees that dominate the hill Consistency theme for tree planting Rooflines below tree canopies across the ridgeline Vegetation that softens views of dwellings Delete Features that Detract: Dwellings intruding on the skyline Overhead power lines Protruding white roofs Rooflines along contour connected to make an unbroken line Cocos Palm Trees Retain Features.."that Contribute
Use of shrubs for screening foreground (native vegetation preferred) Unobtrusive fencing Adequate setbacks to achieve desired landscape Layback kerb and gutter with footpath adjoining, to maximise area for landscaping Retention of vistas Rock retaining walls REMOVE Features that Detract : No defined road edge/footpath Adhoc home business advertising Retaining walls with hard/straight edge Intrusive letter boxes and fences Poor street storm water management resulting in poorly maintained systems and soil
Erosion.Encroachment within road reserve CRESCENT HEAD BUILDING CHARACTER & DESIGN Retain FEATURES that Contribute Large building setbacks Timber balconies, handrails etc Wide eaves Broken or varied rooflines Timber gables Dormer windows Use of verandas projecting from building, not enclosed Not square to frontage Pastel or earthy colours High pitched roofs Varied construction materials Windows and openings in proportion to the wall Rock retaining walls REMOVE FEATURES That Detract:
Boxy heavy developments Enclosed balconies Over use of concrete, excessive width driveways Intrusive retaining walls Dominating brick walls and fencing Viewing double garages from the street front Square shape to frontage Lack of landscaping Featureless walls facing street Bright colours for walls or roofs Modern glass balustrades Narrow verandas
Crescent Head DCP 2006 Development Controls:
29 The following controls/provisions of DCP 2006 are relevant to the proposed development:
- Street Setbacks
- Side and Rear setbacks
- Height
- Building and Retaining Wall:
- Solar Access
- Crossing and Driveways
- Landscaping
- Visual Privacy
- Private Open Space
- Safety in Design
- Stormwater Disposal
- Protection of Views
- Low Density Development Controls
- Car Parking
30 In the Low Density Area nominated in the DCP and which is applicable for this application, a density of at least 500 sq m per dwelling not including the area of any internal driveway or access handle is required.
Local Housing Strategy (Urban Areas 2003) DCP No. 22
31 It was agreed by the experts that DCP 2006 superseded DCP No. 22 in respect of Crescent Heads.
- The evidence
32 The respondent’s evidence was heard from objectors:
- Mr R. Smith resident of 36 Dulconghi Street, Crescent Head.
- Mr G Kennett resident of 15 Dulconghi Street, Crescent Head.
33 An objection was also received from Dr R Loughland, who works overseas and could not attend the hearing. He owns No. 38 Dulconghi Street.
34 Expert witnesses were not called for cross-examination, but there are reports in evidence from:
- Ms M Chapman consultant town planner for the respondent.
- Ms M Witzig consultant town planner for the owners and principal of the applicant company.
35 Also there was in evidence an amended SEPP1 objection for the amended subdivision plan increasing proposed Lot 1 to 455 sq m area. Plans for the new houses on proposed Lots 1 & 2, and driveway long section, and landscape plans. These were intended to reflect the contents of the joint report of the town planners in Exhibit 4.
Mr Smith gave evidence on site and in the hearing, and raised a number of matters. Traffic safety and carparking on Dulconghi Street is one of his and Mr Kennett’s major concerns.
36 Proposed Lot 3 with the existing house at No. 13 Dulconghi has its driveway starting on the street in front of the house on No. 11 Dulconghi. Due to the steep embankment down from the road, the driveway runs part in front of the house on No. 11 within the public footpath reservation, and then across about half of the frontage of the subject site of No. 13 to its existing house. As a consequence of the subdivision it will run across the whole of proposed Lot 2’s frontage.
37 The existing house that is to be retained, scales on the survey plan in Exhibit 8, (Newton Denny Chapelle Surveyors Sheet 1 Job No. 04209) only about 600 mm from the street boundary. Apparently due to the unusual shape of existing No. 13, the council approved the house in this location within the front setback to the street. It has only one car space and no turn around space, so that at present that car has to reverse up the steep driveway.
38 The proposal does not provide for the existing house on proposed Lot 3, to have the council’s required car parking for the Low Density Development Area under Crescent Heads Local Housing Strategy DCP adopted in April 2006. It requires 2 garage/carport spaces behind the front setback, and 2 stacked visitor car spaces within the 5m building front setback.
39 Out from the existing garage, the proposal has only about 1.5 m length of driveway one side, to the street boundary and about 6 m of driveway on the other before part of proposed Lot 2 that the driveway crosses.
40 Both the existing house, and the new house on Lot 2 are to use the existing driveway for access. Until I drew it to the parties’ attention, the proposal showed no rights of way for Lot 3 over Lot 2 in the subdivision so that the former could use it.
41 The new house on proposed Lot 2 has a double carport accessed off the existing driveway, and in theory, one visitor space within the front setback by removing a number of trees, mostly palms. Due to the strange triangular shape of existing No. 13, one apex of its lot overlaps about 10 m of No. 11 between the house on No. 11 and the road reservation. The visitor car space for Lot 2 is within this point within 0.6 m of the street boundary and about 1 m from the house on No.11.
42 The apron in front of proposed Lot 2 house and the driveway within the road reservation can be used for a turnaround space for its own cars and the one car of the existing house on proposed Lot 3. These 4 cars would ascend the steep driveway arriving at the road at a point where the concrete drive of No. 11 comes out.
43 Between the two driveways is a narrow level area in which a vehicle was parked on the day of the hearing. This is apparently an “on street” carspace that allows a car to park at a right angle to the road.
44 Due to the steep topography and the driveway of No. 13 being largely within the public footpath reservation, there is no public footpath outside the site in Dulconghi. The embankment down starts just off the tarred road. On the opposite side of the street to No. 13 is a steep embankment up from the pavement, so the public has to walk along the tarred road that is only 2-lanes with NO parking lanes or kerbs.
45 Also at this position of the street, the topography has caused a curve in the street that commences at the point where the subject driveway emerges onto the road along with the driveways of six (6) other houses. As a result there is little on street parking, or if cars do, they restrict safety sightlines and pedestrian walking space.
46 Under the DCP 2006 a centreline gradient drawing for the driveway is required to check that it does not exceed the 25% maximum permitted provided there are transitional gradients. The drawing tendered in Exhibit 9 is for a previous design where proposed Lot 2 had a separate driveway to Lot 3, not the existing drive.
47 Mr Smith said that the existing house is part of the development proposal. The existing single house and single car using the existing driveway may be acceptable, but it does not justify that remaining so when there are 2 houses using the driveway. The existing house should be brought up to date with DCP 2006 the same as the new houses on Lots 1 and 2 are required. The existing house currently has the land to provide 2 covered and 2 visitor spaces, but it will not if the development is approved. Currently a second or even a third car can stack park in the driveway, but that will not be possible with this development proposal. The existing house will only have one (1) car space on the site. There will be increased impact on the street safety and on street parking demand if the DCP 2006 car parking is not done.
48 Mr Smith had presumed that any car for Lot 3 would have to reverse all the way up the drive. Development Control Plan 2006 allowed that for driveways less than 30 m long, and the subject driveway measured about 25 m. However due to multiple users, not just one house, and the steepness of the drive and the potential hazards at the street, it is obviously desirable for cars of Lot 3 to be able to turn around to exit forwards, for safety reasons.
49 The demand for parking will be even greater if either or both of the Dulconghi houses are used for holiday rental. Also the DCP requires the driveway and turning and parking areas to comply with AS2890.
50 The amended plans were said to show a second visitor space for Lot 2 on the south side of the carport apron. The car-manouvering plan in Exhibit A did not show this nor did the house plans in Exhibit 7. In looking at both one could see that any visitor’s car in that position would prevent manoeuvring of a car from Lot 3 to turn. This is a consideration because stacked visitors cars are acceptable when only one house is involved, the visitors are in that house. But cars from a second house cannot easily ask a visitor’s car to be moved. In that case a car from Lot 3 would reverse all the way up the drive.
51 Mr Smith noted that existing palm and paper bark trees on the site and in the public road reservation outside the site would go to provide the additional visitor parking and manoeuvring space. The applicant said the palms could be relocated, but the paper barks would go. Mr Smith objected about the change to the streetscape saying that in effect the whole front setback of Lot 2 would be concrete or tar sealed contrary to the streetscape provisions of DCP 2006.
52 I noted that the landscape plans in Exhibit 16 show landscaping where the amended subdivision plan in Exhibit 7 shows visitor car parking. If the second visitor space is put on the south side of the carports’ apron, that landscaping goes too, and Mr Smith is correct.
53 It was put to Mr Smith that he is a retired town planner and should have sought to be joined in the appeal. He said he is a lay witness and lives opposite the site in Dulconghi and is entitled to give evidence as an objector.
54 On driveway gradients, the survey plan in Exhibit 8 shows the top of the driveway at RL 33.48 and the carport level for house on Lot 2 as RL 30.50. The survey gives a far more accurate measurement for the driveway and carport location than the sketch in Exhibit A. The approximate distance to get into the northern car space of the carport is 12.5 m assuming a car drives in forwards so that it can reverse out onto the apron and exit forwards. That is a continuous gradient very close to 25% the maximum allowed and that is calculated without provision for transitional grades. I asked the applicant to file and serve an accurate driveway plan and gradients within 7 days of the hearing.
55 What was received at Court, following an extension granted to the 7 days, was a draft deferred commencement condition requiring the applicant to supply an engineer’s plan of gradients and crossfalls to show the driveway would comply with AS2890. So, to date, compliance with that and DCP 2006 has not been demonstrated, and I do not know if it is possible.
56 At the hearing when I noted the deficiencies in the drawings on vehicle manoeuvring and driveway location in Exhibits A and 9, I put to the parties I could take judicial notice of turning templates from AS2890. This was not objected to, and in applying the 85%-ile car turning paths to the survey plan (that shows the existing drive and the existing and proposed houses), it is clear that both of the visitor spaces for Lot 2 would need multi-point turns to be able to exit forwards, and that a car from Lot 3 would have difficulty turning.
57 The joint report in Exhibit 4 from Messrs Chapman and Witzig did not demonstrate any compliance was possible either. Their statement in cl 1.1.4 and cl 2.5.4(e) assumed full compliance with AS2890 is possible, with the current subdivision and house designs. Implicitly, they also assume that the existing house has no need to comply with DCP 2006.
58 I have formed the opinion that compliance with AS2890 is very doubtful, and that there are significant difficulties and potential traffic and pedestrian hazards of vehicular access and parking to proposed Lots 2 and 3, and that the existing house on proposed Lot 3 IS part of the development, and should be provided with the DCP 2006 on-site parking requirement.
59 I note that the respondent has not sought any upgrading of Dulconghi Street to improve on-street parking or pedestrian safety. The evidence of the residents of potential hazards experienced particularly in holiday times with persons unfamiliar with the locality walking and driving and parking on the narrow street has considerable weight.
60 If Dulconghi was a flat level street with houses having full frontages, and ample kerb side parking and good safety sight lines, there may be a case for relaxation of the on-site parking requirements. But the subject situation demonstrates the DCP 2006 requirements are needed to prevent an already poor town planning situation being made worse by the development.
61 The obvious implication is that more space is needed for vehicles with a different subdivision configuration of Lots 2 and 3. That obviously needs a different design for the house on Lot 2 at least.
62 It was submitted that the existing house could be subdivided off as proposed as a single application, and the allotment of No. 36 Stewart Street simply enlarged. Therefore no change to the existing parking and driveway of No. 13 Dulconghi should be required. I do not see that as any justification. That application is not before me, and if it was before the council it would under DCP 2006 consider the adequacy of No. 13’s car parking and the problems of the driveway and Dulconghi Street in any application to reduce the size of No. 13’s allotment. The 500 sq m minimum lot size is just that, where land has constraints that require bigger lot sizes it can be required in any consent.
63 In regard to the undersized proposed Lot 1 compared to the Kempsey LEP minimum allotment area, there is the SEPP 1 objection to consider. The stated objective for the Residential 2(a) zone in which the site is located under the Kempsey LEP is: ”to provide areas for low density residential development”.
64 The subdivision clause of the LEP does not state a supplementary objective for establishing 500 sq m as the minimum area for lots in the 2(a) zone.
65 Development Control Plan 2006 does not state a specific objective for the designation of the locality as “Low Density Area”. It is my opinion the underlying objectives are to be found in the LEP cl 3(b),(h) and (i) and they give particular emphasis to the performance requirements of the DCP 2006 to achieve low density residential amenity.
66 In the aims and objectives of the LEP cl 3, the following subclauses have a bearing on the standard:
The headland of Crescent Heads is the hill on which the site within the “Low Density Area” is located. The headland is a feature of the town and the coastal region of high landscape value.
- (h) to facilitate the provision of residential and tourist accommodation in appropriate locations.
- (i) to ensure that development controls reflect differences in the physical capability of the land and accessibility to services.
67 It is in my opinion that the focus of the experts on proposed Lot 1 having the undersized lot should not distract me from the proper consideration of the other parts of the application.
68 The reality is that Lot 3 needs to be larger than proposed to accommodate the applicable car parking and access requirements. The ability of Lots 2 and 3 as proposed to provide car parking and manoeuvring areas and driveways that are compliant with DCP 2006 and AS2890 is NOT possible for Lot 3 and doubtful for Lot 2.
69 The necessity for a SEPP 1 objection is to show that the objective(s) of the standard are met even though there might be non-compliance.
70 In this case, the objectives of the LEP have not been achieved due to the non-compliance with performance criteria of the DCP 2006 in regard to vehicle access and parking. The objection cannot be upheld.
71 Given that, the other issues of the appeal do not arise.
72 Therefore the orders of the Court are:
2. The exhibits are returned to the parties except Exhibits A, 1, 2, 4, 5, 6, 7, 8, 9, 13 and 16.1. The appeal is dismissed.
___________________
K G Hoffman
Commissioner of the Court
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