Zreika v Sutherland Council
[2012] NSWLEC 1248
•31 August 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Zreika v Sutherland Council [2012] NSWLEC 1248 Hearing dates: 29 August 2012 Decision date: 31 August 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld
Catchwords: Subdivision, SEPP 1 objection Legislation Cited: Environmental Planning and Assessment Act 1979.
Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment
Land and Environment Court Act 1979
State Environmental Planning Policy No. 1 - Development Standards
Sutherland Local Environmental Plan 2006
Threatened Species Conservation Act 1995Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Texts Cited: Sutherland Shire Development Control Plan 2006 Category: Principal judgment Parties: Mahmoud Zreika (Applicant)
Sutherland Shire Council (Respondent)Representation: Counsel
Ms J Amy (Respondent)
Mr I Hemmings (Applicant)
Solicitors
Mr D Massey (Applicant)
File Number(s): 10597 of 2012
Judgment
Mr Zreika owns a waterfront allotment at No. 2 Woodlands Road, Taren Point and lodged Development Application 11/0846 with Sutherland Shire Council on 5 September 2011 proposing a two lot subdivision. The council refused development consent on 23 December 2011 and Mr Zreika is appealing that decision.
The matter commenced as a conciliation conference under s 34AA of the Land and Environment Court Act 1979 however, as no agreement was reached, the conference was terminated and a hearing held forthwith as required by s 34AA(2)(b)(i).
The contentions in the case are whether the objection to the development standard for lot width, lodged under the provisions of State Environmental Planning Policy No. 1 - Development Standards (SEPP1) is well founded and whether the lot sizes, in particular width, are suitable for future residential development in a manner consistent with the council's development standards and policies.
The site and its context
The site, Lot 1 DP 847333, is located on the northern side of Woodlands Road at its most northern point. It is accessed from the cul-de-sac bulb at the end of the road and adjoins the landscaped road reserve and embankment to Taren Point Road and the Captain Cook Bridge. The northern boundary of the site is the Mean High Water Mark (MHWM) of the Georges River. It has a curved frontage of 14.33 m to Woodlands Road, depth to MHWM of 70.5 m on the eastern boundary and an irregular western boundary of some 104 m. Total area of the site is 2238 sq m by legal entitlement, including a portion of accessible land available to the site within the waterway portion of the Georges River waterway. That land is a sandy beach.
A timber jetty runs from the north-eastern corner of the site into the river. Evidence of a former boatshed and garage exist on the site, which is otherwise vacant. A stand of trees runs along the western property boundary providing a visual buffer to the busy Taren Point Road.
The site is an irregular shape fanning out at the waterfront and falls approximately 10 m from the road to the water. The site enjoys extensive views of the Georges River, the Sans Souci foreshore, Captain Cook Bridge and the city skyline.
The planning controls
The site is dual zoned under Sutherland Local Environmental Plan 2006 (the LEP). The northern portion, a tidal sandy beach, is within Zone 16 - Environmental Protection (Waterways). The remainder of the site is Zone 2 - Environmental Housing (Scenic Quality).
The sandy beach is listed as a heritage item in Schedule 6 of the LEP.
Relevant aims of Zone 2 are:
(a) to allow development that complements the predominantly urban landscape setting of the zone, characterised by dwelling houses on single lots of land,
(b) to ensure the character of the zone, as one comprised predominantly of dwelling houses, is not diminished by the cumulative impacts of development,
(c) to allow development that is of a scale and nature that is consistent with the urban surroundings of the zone, while retaining or restoring natural features,.....
(f) to minimise the impacts of development in the vicinity of heritage items,
(g) to allow the subdivision of land only where the size of the resulting lots makes them capable of development that retains or restores natural features, while allowing a sufficient area for building footprints,
(h) to ensure sharing of waterfront views between occupiers and users of new and existing buildings.
Clause 28 of the LEP requires consent for subdivision and consent must not be granted unless the consent authority has considered the relevant zone objectives.
The site is subject to a 10m Foreshore Building Line (FBL) under clause 17 of the LEP. The relevant objectives of that clause are
a) to avoid adverse ecological effects on waterways,....
(d) to restore and revegetate foreshore areas to improve estuarine flora and fauna habitat,
(e) to minimise any adverse impact from development on water quality and, so far as is practicable, to improve the quality of urban run-off entering waterways,
(f) to minimise any adverse visual impact of development when viewed from adjacent land and waterways by using a design and materials that complement the natural landscape of the land to which this clause applies.
Clause 39 of the LEP contains standards for minimum lot size and, in Zone 2, a minimum area of 700 sq m, minimum width of 18 m and minimum depth of 27 m is required. The existing allotment does not satisfy the minimum width requirement however, all other development standards are met. The objectives of the development standards are contained in clause 37 and those relevant to the application are:
(a) to ensure that a new lot created for the purpose of a dwelling house has a sufficient area available for:
(i) a dwelling house and ancillary facilities, and
(ii) an outdoor recreation and service space, and
(iii) vehicular access to and from the site,....
(c) to ensure that newly created lots provide adequate building area to accommodate the type of dwellings that are proposed to be built on such lots,
(d) to ensure that the area and width of lots are sufficient for their intended purpose and provide sufficient space for negative externalities to be resolved on site,
(e) to ensure that a sufficient area of land is available, in connection with development, for landscaping, drainage and parking so as to achieve a satisfactory residential amenity,
(f) to ensure new development complements the established scale and character of the streetscape where the development is carried out, and does not dominate the natural qualities of its setting.
The heritage provisions of the LEP are contained in clause 54. Despite the northern extent of the site being a heritage item, the council does not press any heritage issues and is satisfied that the proposal would not affect the heritage significance of the item.
Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment (the REP) also applies to the site. The intertidal area fronting the site is mapped as forming part of the Taren Point Shorebird Community, which is listed as an endangered ecological community (EEC) under Schedule 1 of the Threatened Species Conservation Act 1995. The council has assessed the application under this legislation and concludes that the subdivision is unlikely to have a significant effect on this EEC provided that suitable stormwater treatment is installed on the site that will not result in scour of the sand flat fronting the site and the increase of pollutant loads. It has proposed consent conditions that reflect this requirement and those conditions are agreed by the applicant.
Sutherland Shire Development Control Plan 2006 (the DCP) also applies to the site however there are no specific provisions that apply to subdivision. The DCP does provide guidance in assessing the suitability of the lots to accommodate a dwelling house.
Background and the proposal
The former owner of the land had lodged two previous development applications, both proposing two lot subdivision of the site, with the council in 2010 and 2011. The first proposed a similarly configured subdivision to that currently before the Court and was refused consent. The 2011 application, proposing a battle-axe subdivision was granted consent.
The plan of subdivision proposes the division of the land into two elongated allotments, both of which would have street frontage and water frontage. Proposed Lot 1 is the eastern allotment and would have an area of 1078 sq m of which 701 sq m is within Zone 2, a curved frontage of 7.18 m to Woodlands Road, depth of 70.5 m to the MHWM and 57.91 to the boundary between Zone 16 and Zone 2. The common boundary between the two lots is 94.04 m to MHWM.
Lot 2, the western lot, would adjoin the Taren Point Road reserve and have a frontage of 7.15 m and area of 1160 sq m of which 851 sq m is within Zone 2.
As the proposed lots do not satisfy the minimum lot width development standard, an objection to that standard has been lodged under SEPP1.
The evidence
The conference commenced on site. As the joint expert town planning report prepared for the proceedings included plans of hypothetical dwelling houses to address the council's contention that the applicant had not shown the sites could accommodate a dwelling house in accordance with its planning controls, the council had provided those plans to neighbours. Those neighbours had not objected to the subdivision but were concerned about the siting and height of any dwelling house that may be built of the lots, particularly in relation to view loss. The site view included an inspection of the dwelling house at No. 3 Woodlands Road to provide an understanding of the views currently enjoyed from that premises.
The plans before the Court do not propose any dwellings or building envelopes.
Town planning evidence was heard from Mr L Fletcher for the applicant and Mr E Phillips for the council. They agree that the site is capable of accommodating two allotments on the basis of the council's consent to the earlier 2011 application for battle-axe subdivision. The majority of their evidence then assessed the benefits/disbenefits of subdividing the block in the manner proposed as opposed to the approved plans. That is not a matter that is relevant to my consideration of the application. I must assess the application against the considerations in s 79C of the Environmental Planning and Assessment Act 1979.
Both planners accepted the hypothetical plans demonstrated the allotments were capable of accommodating a dwelling that accorded to the council's planning controls however Mr Phillips was concerned that the plans may not represent the full capability of built form.
Following the discussions undertaken during the conciliation phase, having the benefit of the site view including views available to the dwelling opposite the site and after hearing evidence provided to the Court, the experts agreed that the SEPP1 objection to the minimum site width development standard was well founded and that subdivision of the site as proposed would be consistent with the objectives of Zone 2 and clause 37 of the LEP. That is because it was agreed that the lot pattern was consistent with that of adjoining allotments and the lots were of similar size and in many cases larger and wider than those lots as evidenced in the table included in Appendix 4 of the Statement of Environmental Effects, exhibit B.
The case then turned to what form future development of the land should follow. Both planners agreed that it is desirable that any future development of the site consider the planning principles of view sharing as outlined in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. The council initially sought the imposition of a condition that restricted future development of the land in accordance with the concept plans included in the Joint Expert Report, exhibit 2. That position was altered to seek the imposition of a condition requiring a restriction to user on the title of the allotments that limited the maximum height of any dwelling on the land to RL 13.3. That height accords with the highest ridge of the adjoining property to the east of the site. Mr Fletcher says that this is not necessary and may not lead to the best planning outcome for the site. Mr Phillips conceded that the current consent for battle-axe subdivision of the site did not impose any conditions that restricted the future built form on the land and that, given the size of the front allotment, it was likely that this lot would contain a two storey dwelling house.
After considered discussion of the matter, the planners agreed that the council's planning controls contained sufficient development standards to ensure that any future development application for the two lots would have to be carefully designed to achieve the relevant objectives in the LEP and for that reason, it would not be necessary to impose proposed condition 54.
Conclusion and findings
Having regard to the evidence provided and the positive approach offered by the planning experts, I am satisfied that the subdivision is consistent with the Zone 2 objectives and the objectives for subdivision as contained in clause 37. That is because it has been demonstrated that the sites are capable of accommodating a dwelling house that can be designed with an appropriate footprint to complement the predominantly urban landscape setting of the zone, whilst ensuring the character of the zone, as one comprised predominantly of dwelling houses, is not diminished by the cumulative impacts of that development and can be of a scale and nature that is consistent with the site's urban surroundings.
The council has assessed and is satisfied that the subdivision will not impact the sandy beach that is identified as the heritage item provided conditions of consent are imposed and I agree with the imposition of those conditions.
With regard to the SEPP1 objection, I accept the evidence of the planners that it should be upheld. The current site is already less than the minimum development standard. So too are the adjoining residential properties. I am satisfied that the objectives of the standard will be met. That is because, firstly, the site view has shown that dwellings can be appropriately sited on lots of similar size to that proposed. In addition, the council's contentions have meant that the applicant has had to demonstrate, through the preparation of concept architectural plans, that the lots can provide sufficient area for a dwelling house, ancillary facilities, outdoor recreation and service space, vehicular access and parking to comply with the relevant development standards and DCP controls without creating any adverse impacts to adjoining properties whilst being consistent with the scale and character of the streetscape.
I agree with the planners, that the most appropriate form of development for the site would restrict the built form on the upper portion of the site to single storey development. I do not however consider that it is necessary to impose a covenant or any condition of consent to reflect my view. I am satisfied that the objectives in the LEP and the council's planning controls are sufficient to address view-sharing and amenity issues. I do not consider the site is so confined that it is necessary to impose a building envelope requirement. Similarly, I am not satisfied that the suggested height limitation will achieve the outcome the council is wanting to achieve and for that reason, I will not impose condition 54 in any form.
Having found the SEPP1 objection is well founded and that the development is consistent with the objectives of the LEP the application should be approved.
The Orders of the Court are:
(1) The appeal is upheld.
(2) Development Application 11/0846 for a two-lot subdivision of Lot 1 DP 847333, No. 2 Woodlands Road, Taren Point is approved subject to the conditions in Exhibit 3 with the exception of condition 54.
(3) The council is to provide an electronic copy of those conditions to allow making of final Orders.
(4) The exhibits, other than exhibits A and B, may be returned.
________________________
Sue Morris
Commissioner of the Court
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Decision last updated: 31 August 2012
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