Land and Environment Court New South Wales Medium Neutral Citation: Nattrass v Northern Beaches Council [2021] NSWLEC 1079 Hearing dates: 4 December 2020 Date of orders: 18 February 2021 Decision date: 18 February 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: The court orders that: (1) The appeal is dismissed. (2) The Applicant's Cl 4.6 written request justifying the contravention of cl 4.1 of the PLEP minimum subdivision lot size development standard is not upheld. (3) Development Application No DA2018/1066 for the subdivision of one lot into two lots, demolition works and construction of a driveway at 27 Kevin Avenue, Avalon, NSW legally identified as Lot 11 in Deposited Plan 12435 is refused. (4) Exhibits are returned except Exhibits A, 1 and 5. Catchwords: DEVELOPMENT APPEAL – subdivision – cl 4.6 variation request to vary minimum subdivision lot size development standard – tree canopy – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 2014 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Miller v Pittwater Council [2014] NSWLEC 1087 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 STM 123 No. 7 Pty Ltd v Waverley Council [2020] NSWLEC 1495 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Pittwater 21 Development Control Plan Category: Principal judgment Parties: Gregory Nattrass (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: T Sattler (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Sattler & Associates Pty Ltd (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2018/385228 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal by the Northern Beaches Planning Panel of development application No DA2018/1066 for the subdivision of one lot into two lots, demolition works, tree removal and construction of a driveway (the Proposed Development) at 27 Kevin Avenue, Avalon, NSW legally identified as Lot 11 in Deposited Plan 12435 (the Site). 2. The hearing commenced with a view of the Site and the street. The legal representatives and the experts attended the site view and we walked up the street to have a look at some of the items that were identified in the Applicant's cl 4.6 written request referred to in this Judgment. The trees in the location of the proposed driveway of the Proposed Development were identified and described and we then walked behind the existing dwelling on the Site and I was shown the approximate boundary line of the proposed subdivision which runs on an angular form behind the existing building. There were a number of approved secondary dwelling or studios at 25 Kevin Avenue and at 23 Kevin Avenue that were pointed out as well as a demonstration of the size of 50.3 square metres, which is the shortfall in area below the lot size development standard of the Proposed Development. Finally, the Respondent's Mr Patterson summarised the concerns of objectors. 3. The Court also heard from an objector and has considered the List of Objectors (Exhibit 5) and the written submissions from objectors which are contained within the Respondent's Bundle of Documents (Exhibit 2). The submissions raise matters including undersized lots and inconsistent subdivision configuration and pattern, loss of trees, adverse parking and traffic impacts and noncompliance with planning controls. 4. A Joint Expert Report was prepared by Vaughan Milligan, Consultant Planner for the Applicant and Jeff Mead, Consultant Planner for the Respondent filed 2 December 2020 (Joint Planning Report) (Exhibit 3). The experts were not cross examined and the parties relied on the evidence before the Court and their respective submissions. 5. The two issues for determination in these proceedings are whether the Applicant's cl 4.6 written request seeking to justify the non compliance with the minimum subdivision lot size development standard of 700m2 is adequate and whether the impact of the Proposed Development on the tree canopy was unacceptable. The Contentions are particularised in the Statement of Facts and Contentions filed 9 May 2019 (SOFAC) (Exhibit 1). The Respondent submits that: 1. The development standard contained in cl 4.1 of the Pittwater Local Environmental Plan 2014 (PLEP) provides for a minimum subdivision lot size of 700m2 for the Site and proposed lot 1 and proposed lot 2 will each be 649.7 m2. 2. The environmental planning grounds for justification provided within the cl 4.6 written request for the contravention of the development standard are inadequate in that they are general propositions. 3. The cl 4.6 written request has not demonstrated that compliance with the development standard is unnecessary or unreasonable because the objectives of the development standard will be compromised by the Proposed Development through the noncompliance including that the resulting lots would not be consistent with the pattern, size and configuration of existing lots in the locality. 4. The Proposed Development will establish an adverse precedent for other similar sized lots in the locality which is not in line with the public interest and inconsistent with the desired future character of the Avalon Beach locality. 5. The landscape component of the subdivision is not supported because the construction of the proposed crossover and driveway will result in the loss of the existing canopy of trees. (Tcpt, 4 December 2020, p 8(45)) (folio 3 behind tab 1 of Exhibit 2 Respondents Bundle of Documents – consideration of the application by the Respondent Council). 1. It is the Respondent's strong position as stated in opening, that the Site, in this location of the locality, is predominantly characterised by consistent rectangular allotments and that consideration of concepts of pattern, size and configuration will be necessary when dealing with the objectives of the minimum lot size control and that the cl 4.6 written request has not adequately grappled with this. The Respondent's case is that "it's not just a matter of looking at the size or the pattern or the configuration in isolation, you need to consider all three." (Tcpt, 4 December 2020, p 10(8)). By way of submission, the Respondent fully endorses the provisions of effectively reads from the Development Assessment Report contained within the Respondent's Bundle of Documents (Exhibit 2), "in that it does summarise the concerns of the council very clearly as to why the cl 4.6 written request that's currently before the Court is inadequate and should not be found to be well-founded." (Tcpt, 4 December 2020, p 11(5-20)) 2. In relation to Contention 2 regarding the impact of the Proposed Development on the tree canopy the Applicant's initial submission is that on a literal reading of Contention 2 the proposed building envelope for Lot 1 of itself does not impact any trees and therefore this contention is resolved "in an arboreal sense" (Tcpt, 4 December 2020, p 2(45)). The Applicant's expert, Mr Milligan takes a similar view but also expresses a view that if the construction of the driveway is considered then the "loss of tree canopy as a result of the driveway is not significant in this instance, with ample opportunity within the lots for supplementary planting of canopy trees to replace trees removed through the driveway works." (Joint Expert Report at para [2.4]) 3. The Respondent's expert, Mr Mead disagrees with the literal reading of Contention 2 and it is his opinion that the layout of Lot 1, including the driveway is of relevance to the consideration and assessment of the application and goes on to state that: "the proposal is inconsistent with the provision of clauses A4.1, B2.2, B4.6, B2.22, C1.1 and C4.7 of P21 DCP which have a focus on retaining and enhancing existing vegetation […] the planning controls place emphasis on tree retention and this should be the first priority." (Joint Expert Report, 2 December pg 15 and 16) 1. The Applicant's case is that other than the demolition of the existing building and the construction of the driveway, with associated tree removal, there is no works to be done pursuant to the Proposed Development, that is, this is "merely lines on paper" to register two titles instead of the current one. (Tcpt, 4 December 2020, p 19(42)). In relation to the lot sizes, the Applicant argues that the subdivision is not a battle-axe subdivision and relies on the fact that access is provided to proposed lot 2 via a right of carriageway and accordingly, the area of lot one should be considered as measuring 745.3 square metres in accordance with cl 4.1(3A) of the PLEP. The language of cl 4.1(3A) of the PLEP relevantly provides: If a lot is a battle-axe lot, or other lot with an access handle, the area of the access handle is not to be included in calculating the lot size. 1. This "battle-axe" argument put by the Applicant in submissions is not supported by the evidence of the Applicant's expert as set out in the Joint Expert Report and the cl 4.6 written request. 2. The Applicant also relies on the definition of "subdivision" in s 6.2 of the EPA Act and submits that the "meaning of subdivision of land doesn't necessarily relate to cadastral boundaries registered at the land title's office." (Tcpt, 4 December 2020, p 20(22)). The Applicant makes a comparison between "subdivision" and dual occupancy development which is permitted with consent in the R2 zoning table of the PLEP. The Applicant submits that "if council hand out approvals for secondary dwellings and dual occupancies, what they're doing, in a physical sense, is complying with the meaning of 'subdivision' under the Act." (Tcpt, 4 December 2020, p 20(35)). This comparison with approved dual occupancies and secondary dwellings, by the Applicant, is meant as a means to rebut the Respondent's contention of that the Proposed Development is inconsistent with the pattern and character of the locality. The argument, as I understand it, by the Applicant is that the approved secondary dwelling right next door will merely be replicated by the Proposed Development which effectively follows the pattern put in place next door, further the, related argument is the fact that dual occupancy is permitted means that the area is "essentially sub-zoned for dual lot density […] they're going to form that same subdivision pattern anyway". (Tcpt, 4 December 2020, p 21(15, 42)). 3. Finally, the Applicant acknowledges that as at least lot 2 contravenes the minimum subdivision lot size development standard, the Applicant relies on the cl 4.6 written request to justify this contravention. 4. At the outset, I do not accept the Applicant's argument that there is merit in comparing what is referred to as a development pattern (comprised of dual occupancies and secondary dwellings) with the subdivision pattern for a number of reasons. Firstly, the Applicant's submission on the concept or definition of 'subdivision' seems to depart from the Proposed Development which seeks consent specifically for a Torrens title subdivision. Secondly, the Proposed Development is not seeking approval for a secondary dwelling nor is it seeking approval for a dual occupancy both of which are subject to a number of controls unrelated to a Torrens Title subdivision. It is my opinion that it is erroneous to make this comparison and as I am tasked with determining a development application for a Torrens Title subdivision I will consider the controls and jurisdictional prerequisites relevant to a Torrens Title subdivision. Secondly, the Applicant made it very clear that the Proposed Development is merely lines on paper to register two lots instead of the current one. I address this further at [17] in the Judgment. 5. I will now consider the jurisdictional issue in this matter which is the cl 4.6 written request relied on by the Applicant to justify the contravention of the minimum subdivision lot size development standard contained in cl 4.1 of the PLEP. However, I need first to address the Applicant's battle-axe argument, namely that only Lot 2 is strictly subject to the cl 4.6 written request as the area of the proposed Lot 1 should not be considered as 649.7 square metres but rather 745.3 square metres which is including the area of the Right of Way. I have considered this argument and conclude that I am unable to accept the Applicant's submission. The Applicant argues that since the Proposed Development does not involve a battle-axe subdivision and provides access to the proposed Lot 2 by way of a Right of Way through the Proposed Lot 1, that the area of the Right of Way should be included in the calculation of the size of the proposed Lot 1 resulting in only Lot 2 being in contravention of the minimum lot size development standard. I find that each of the proposed lots of the Proposed Development will be in contravention of the minimum subdivision lot size development standard and that the area of the Right of Carriage way in the proposed Lot 1 is an "access handle" for the purpose of cl 4.1(3A) of the PLEP for the following reasons: 1. The language of cl 4.1(3A) of the PLEP is not consistent with the Applicant's argument and the clause is not limited to battle-axe subdivisions by expressly including the phrase "battle-axe lot or other lot". The wording is as follows: If a lot is a battle-axe lot or other lot with an access handle, the area of the access handle is not to be included in calculating the lot size. 1. The experts agree in the Joint Expert Report that particular (a) of Contention 1 is a fact and it provides that: "Both Lot 1 (649.7m2) and Lot 2 (649.7m2) fall short of the 700m2 minimum lot size development standard prescribed by clause 4.1 of PLEP 2014" 1. Mr Milligan, in his cl 4.6 request unambiguously states on page 1 that cl 4.1(3A) of the PLEP "requires that the area of any access corridor be excluded for the purpose of calculating the minimum lot size" and then Mr Milligan clarifies as follows: "The resultant allotments which have been defined as Proposed Lots 1 and 2, will have the following indices: Site Area (Lot 1): 745.3m2 (649.7m2 excluding ROW) Site Area (Lot 2): 649.7m2 Lot 1 will present a variation of 50.3m2 or 7.18% from the standard. Lot 2 will present a variation of 50.3m2 or 7.18% from the standard." 1. I am satisfied that it is proper and appropriate for the cl 4.6 written request to be considered by the Court as it is drafted, that is, it is prepared as a request that includes and applies to both Lots 1 and 2 as they each contravene the minimum subdivision lot size development standard of cl 4.1 as defined by cl 4.1(3A) of the PLEP being to calculate the lot size by excluding the access handle. Clause 4.6 written request to vary the minimum lot size 1. The parties agree that compliance with cl 4.6 of the PLEP is a jurisdictional prerequisite for the granting of development consent for the Proposed Development as it contravenes the minimum subdivision lot size development standard as prescribed in cl 4.1 of PLEP which requires a minimum subdivision lot size of 700m2 for the Site. 2. In accordance with cl 4.6 of the PLEP, an updated written request has been provided by the Applicant prepared by Vaughan Milligan and is annexed to the Joint Expert Report. Mr Vaughan recommends the approval of the Proposed Development and concludes that the written request adequately demonstrates that the relevant objectives of the standard will be met resulting in compliance with the development standard being unnecessary or unreasonable. Further, the conclusion of Mr Milligan is that the lots can be readily developed in a manner which is consistent with the surrounding pattern of development and that the density of the proposed subdivision is appropriate for the site and locality. As stated above at [13] it is my opinion that it is erroneous to consider the pattern of development in the context of a development application seeking development consent for a Torrens Title subdivision particularly where the minimum subdivision lot size development standard requires the consent authority to consider consistency with the "pattern, size and configuration of existing lots in the locality." 3. I will consider the cl 4.6 written request as required by cl 4.6(3) and form a state of satisfaction as to whether the cl 4.6 written request has adequately addressed the matters required to be demonstrated by subclause (3) and as to whether the Proposed Development is in the public interest because it is consistent with the objectives of cl 4.1 of the PLEP and with the objectives for development with the R2 zone. Is the Development standard unnecessary or unreasonable? 1. Firstly, I am required to consider whether the cl 4.6 written request has demonstrated that compliance with the minimum subdivision lot size is unnecessary or unreasonable as required by cl 4.6(3)(a) of the PLEP. I will later consider whether the cl 4.6 written request demonstrates that there are sufficient environmental planning grounds to justify the contravention of this development standard (cl 4.6(3)(b)). 2. I accept the Respondent's submission that when considering the matters required to be demonstrated by subclause (3) the Court is to rely only on the evidence from the cl 4.6 written request (STM 123 No. 7 Pty Ltd v Waverley Council [2020] NSWLEC 1495 at [28]). It is also current, that the Court, in exercising the functions of the consent authority, must "in fact" be satisfied that the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case (cl 4.6(4)(a)(i) PLEP). (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130) 3. There are five common ways which an applicant might demonstrate that it is unreasonable or unnecessary to comply with a development standard and these are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (Wehbe) and again in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [16]. The Applicant's cl 4.6 written request relies on the first and second of these, namely: 1. Establish that the objectives of the development standard are achieved, notwithstanding non-compliance with the development standard; and 2. Establish that the underlying objectives or purpose is not relevant to the development with the consequence that compliance is unnecessary. 1. The objectives of cl 4.1 of the PLEP, titled "Minimum subdivision lot size" are set out below as follows: (1) The objectives of this clause are as follows— (a) to protect residential character and amenity by providing for subdivision where all resulting lots are consistent with the desired character of the locality, and the pattern, size and configuration of existing lots in the locality, (b) to provide for subdivision where all resulting lots are capable of providing for the construction of a building that is safe from hazards, (c) to provide for subdivision where all resulting lots are capable of providing for buildings that will not unacceptably impact on the natural environment or the amenity of neighbouring properties, (d) to provide for subdivision that does not adversely affect the heritage significance of any heritage item or heritage conservation area, (e) to provide for subdivision where all resulting lots can be provided with adequate and safe access and services, (f) to maintain the existing function and character of rural areas and minimise fragmentation of rural land, (g) to ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls. 1. I have read and considered the Applicant's cl 4.6 written request and the contents of the Joint Expert Report. I have also read the Development Assessment Report contained in the Respondent's Bundle of Documents (Exhibit 2). I have included an aerial view image extracted from page 5 of Mr Milligan's cl 4.6 written request annexed to the Joint Expert Report filed 2 December 2020 (Exhibit 3) below and note that the Site is identified in the aerial image. Mr Milligan does not agree that there is a consistent size, pattern or configuration (Joint Expert Report, 2 December pg 4(1.4)). 1. As required by cl 4.6(4)(a)(i), after having considered the written request I find that I am not satisfied that the cl 4.6 written request has adequately addressed the matters required to be demonstrated by subclause (3)(a), that is, I am not satisfied that the written request, in seeking to justify the non compliance with the minimum subdivision lot size development standard, has demonstrated that it is unnecessary or unreasonable to comply with this development standard for the following four reasons. 2. Firstly, in relation to Objective (a) of cl 4.1 of the PLEP, the cl 4.6 written request addresses residential character but does not address the desired character as set out in clause A4.1 (Avalon Beach Locality) of Pittwater 21 Development Control Plan (P21 DCP). Mr Milligan addresses the pattern of development rather than the subdivision pattern as required by the objectives of cl 4.1 of the PLEP and he also relies on lot sizes of 27 properties which are not to be found in the aerial image he includes in the cl 4.6 written request. 3. I accept Mr Mead's evidence on page 9 of the Joint Expert Report that the proposed development does not meet the objectives of cl 4.1 and I find that the proposed subdivision is inconsistent with the pattern of existing lots in the locality as described by Mr Mead at para [1.24] of the Joint Expert Report, namely, that the lots adjoining and in close proximity to the Site adopt a consistent pattern and approximate sizes and all are in excess of 700m2. Mr Mead states that in his opinion "to ignore those nearby lots in favour of lots further afield to glean contextual cues for subdivision pattern is not the correct approach to the objective." I accept Mr Mead's opinion in this case. 4. Further, the cl 4.6 written request focuses on the size of the lot without adequately considering pattern and configuration as required by Objective (a) of cl 4.1. I refer to Table 1 in the cl 4.6 written request which lists 27 properties which have areas less than 700m2. I have considered the Respondent's Development Assessment Report in Respondent's Bundle (Exhibit 2) at folio 27 and 28 and the assessment officer's comments in relation to those 27 properties listed in the cl 4.6 written request at Table 1, that the Proposed Development will create lots which will be substantially smaller in area than that of adjoining and nearby properties to the Site, I have considered that both the assessment officer and Mr Mead make reference to Nos 19-35 Kevin Ave which vary in lot size from 1391m2 to 1397m2 and to Nos 18-48 Kevin Ave which vary in lot size from 740m2 to 929m2. These lots are adjoining and in close proximity to the Site and they are all greater than 700m2. 5. The Respondent submits and I agree that "its not just a matter of looking at the size, or the pattern, or the configuration in isolation, you need to consider all three" and concludes that "there is a very clearly apparent block pattern, size and configuration that was depicted in that aerial shot." (Tcpt, 4 December 2020, p 10(5-10)). 6. The Respondent's Assessment Officer's comment in the Assessment Report is that "the proposed subdivision will result in two (2) irregular shaped lots which are inconsistent with the general rectangular shaped subdivision pattern of Kevin Ave and nearby surrounding street." 1. I accept that the "funny diagonal proposed subdivision line" as described by Mr Mead in the Joint Export Report, does not occur anywhere else in the area depicted in the aerial shot other than what appears to be a three lot subdivision on Park Avenue which includes two battle-axe lots and one irregular shaped lot. 2. Accordingly, I find that the Proposed Development is not consistent with Objective (a) of cl 4.1 because the resulting lots of the Proposed Development will not be consistent with the pattern, size and configuration of existing lots in the locality. 3. A further aspect of this first reason addressing Objective (a) of cl 4.1, is that Mr Milligan does not address the desired character set out in P21 DCP at clause A4.1 (Avalon Beach Locality) and the cl 4.6 written request is deficient in this regard by not demonstrating that this aspect of objective (a) is achieved in the attempt to justify that it is unreasonable or unnecessary to comply with the minimum subdivision lot size development standard. I acknowledge the submissions made by the Applicant in relation to the desired character and the wording of clause A4.1 (Avalon Beach Locality) however this analysis is not supported by the evidence or the cl 4.6 written request. A substantial part of the analysis in the Applicant's submission includes the development pattern comparison with a Torren Title subdivision which I have already addressed earlier in this Judgment and I do not consider it necessary or helpful to address all aspects of this submission for the reasons previously given. 4. The second reason is that Objective (c) of the cl 4.1 development standard is not achieved to the extent that I find that the Proposed Development unacceptably impacts on the natural environment of the site by the removal of 4 native trees which contribute to the character of the streetscape and locality. Trees 1, 2, 4, 5 and 6 as identified in the Arborist Report by "Growing My Way Tree Services" will be removed to accommodate the construction of the new driveway within Lot 1 to provide access to the proposed Lot 2 and I accept Mr Mead's evidence that: "this issue can be directly related to the lot size. If the lots were compliant, it would be possible to deal with the constraints in a more appropriate manner. It is my opinion that the proposal has not been designed in harmony with the natural environment. The inability to do so can be related back to the lot size non-compliance." (Joint Expert Report, 2 December pg 10) 1. Thirdly, as required by Objective (g) of cl 4.1 Mr Milligan does not consider or address any of the relevant controls and instead refers to the proposed Plan of Subdivision (Exhibit C) and relies on the building envelope of the concept drawings as a means of demonstrating compliance with the controls. The relevant controls are listed in the SOFAC and include clause A4.1 (Avalon Beach Locality) of P21 DCP. The Proposed Development is not consistent with cl 1.2 Aims of the PLEP (a), (b) and (g) – in particular (b) which emphasises development being consistent with the locality statement, in particular I find that the Proposed Development is inconsistent with the desired future character as set out in clause A4.1 (Avalon Beach Locality) of P21 DCP in that it does not positively respond to the desired future character which in part provides as follows: "The objective is that there will be houses amongst the tree and not trees amongst the houses." "As far as possible, the locally native tree canopy and vegetation will be retained and enhanced to assist development blending into the natural environment, to provide feed trees and undergrowth for koalas and other animals, and to enhance wildlife corridors." 1. Further, control C4.7 of P21 DCP requires that the specific house design should be prepared for each proposed lot to ensure maximum retention of trees on each proposed lot. The current existing driveway is located roughly in the centre of the front boundary and the design of the Proposed Development will locate the new driveway parallel to and close to the adjoining neighbouring boundary resulting in the loss of most if not all of the trees on the Site being located predominantly near the adjacent property boundary. A related control C1.1 of P21 DCP relates to landscaping and requires development to provide for the reasonable retention and protection of existing significant trees especially near property boundaries. The Applicant's cl 4.6 written request does not address either of these controls. 2. Lastly, I am not satisfied that the Lot size and dimensions of the Proposed Development will accommodate development consistent with the relevant development controls and I adopt the reasons of Mr Mead on page 9 of the Joint Expert Report where he identifies that the building envelope plans show significant changes in site levels which will result in significant cut, fill or subfloor area to dwelling and the front dwelling will not comply with the front setback controls under the DCP. The Applicant has not demonstrated in the cl 4.6 written request that the lot configurations and sizes will facilitate a form of development that is consistent with the desired future character and therefore I am not satisfied that the cl 4.6 written request demonstrates that Objective (g) of cl 4.1 is achieved. Are there Sufficient Environmental Planning Grounds? 1. The next part of the process is to consider whether the Applicant's cl 4.6 written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard. 2. The Respondent submits that the cl 4.6 written request concentrates only on the question of size, and does not engage with the task at hand by not addressing the other elements that go towards what is set out in the PLEP. 3. The cl 4.6 written request identifies at page 7 the following two environmental planning grounds as being sufficient to justify the contravention of the minimum subdivision lot size development standard: 1. The proposed subdivision, which as discussed introduces an appropriate compatible lot size within the locality, which promotes the orderly and economic use of the land (cl 1.3(c) of the EPA Act). In this regard, the concept dwelling designs provided with the application confirms that each lot, notwithstanding the non-compliance with the minimum allotment size, will be capable of providing for a residential dwelling with appropriate amenity and outdoor recreation space to meet the needs of a family in this area. 2. The proposed subdivision of land will result in allotments which whilst marginally less than the minimum allotment size in the locality (7.18% respectively) will however provide the opportunity for additional housing, which by the nature of the size of the site will provide a more affordable housing choice, which is consistent with the object of the act to promote the delivery and maintenance of affordable housing (cl 1.3(d) of the EPA Act). 1. As required by cl 4.6(4)(a)(i), after having considered the environmental planning grounds, I am not satisfied that the cl 4.6 written request has adequately addressed the matters required to be demonstrated by subclause (3)(b) regarding there being sufficient environmental planning grounds to justify contravening the minimum subdivision lot size development standard for the following reasons: 1. Notwithstanding Mr Milligan's reference to compliance with the judgment of Initial Action regarding environmental planning grounds the cl 4.6 written request does not go far enough as required by Initial Action and set out by Preston CJ at [23] and [24] as follows: "23 As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase "environmental planning" is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act. 24 The environmental planning grounds relied on in the written request under cl 4.6 must be "sufficient". There are two respects in which the written request needs to be "sufficient". First, the environmental planning grounds advanced in the written request must be sufficient "to justify contravening the development standard". The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]." 1. The environmental planning grounds put forward in the cl 4.6 written request are of a general nature and are general propositions. I accept the Respondent's submission that it is clear that Mr Milligan knew that the environmental planning grounds need to be site specific and pertaining to the breach that is under examination (Tcpt, 4 December 2020, p 41(46)) and that although Mr Milligan claims that they are not general propositions, "they would apply to next site, and the next site, and the next site." (Tcpt, 4 December 2020, p 41(50)). Is the Proposed Development in the public interest? 1. The final state of satisfaction I am required to achieve as provided by cl 4.6(4)(a)(ii) is whether the Proposed Development will be in the public interest because it is consistent with the objectives of the minimum subdivision lot size development standard and the objectives for development within the R2 zone. 2. I have considered and found above that the Proposed Development is not consistent with at least 3 of the objectives of the minimum subdivision lot size development standard. I do not have any evidence that the Proposed Development would be inconsistent with the objectives for development within the R2 zone, however the inability of the Proposed Development to achieve the objectives of the development standard are significant for the reasons set out above and I find that the Proposed Development is not in the public interest. Will there be an unacceptable impact upon the existing tree canopy? (contention 2) 1. As I have found that the jurisdictional prerequisite cl 4.6 has not been satisfied I will only deal briefly with the second Contention in the SOFAC which reads as follows: "2. Unacceptable impact upon existing canopy trees The indicative building footprint on Lot 1 results in unacceptable impact upon the preservation of existing mature canopy trees. Particulars: a. The incorporation of a second dwelling on the Site directly attributes to the loss of existing mature canopy trees, inconsistent with the provisions of clauses A4.1, B2.2, B4.6, C1.1 and C4.7 of P21 DCP, which emphasise the need to preserve the existing natural environment and canopy trees. b. The proposed impact on canopy trees is inconsistent with the desired future character of the Avalon Beach Locality prescribed by clause A4.1 of P21 DCP, which aims to ensure that existing and new native vegetation is integrated with development, with houses amongst trees and not trees amongst houses. Controls: - Clause A4.1 (Avalon Beach Locality) of P21 DCP - Clause B2.2 (Subdivision – Low Density Residential Areas) of P21 of DCP - Clause B4.6 (Wildlife Corridors) of P21 of DCP - Clause B4.22 (Preservation of Trees and Bushland Vegetation) of P21 of DCP - Clause C1.1 (Landscaping) of P21 of DCP - Clause C4.7 (Subdivision – Amenity and Design) of P21 of DCP" 1. The Applicant does not agree that this contention needs to be considered by the Court and relies on the language used in the Contention referring to the indicative building footprint on Lot 1. The Applicant submits that at the time this contention was drafted, Tree 3 was Council's main focus, it was the tree which was proximate to the footprint on lot 1 and this tree has since been removed in accordance with Council consent for its removal. The Applicant submits that now that Tree 3 is gone, Contention 2 "ought to be taken away". The Applicant acknowledges that the Contention includes particulars however submits that "the particulars must surely relate to the contention and the contention relates to the building footprint on lot 1." (Tcpt, 4 December 2020, p 28(40)). 2. The Applicant refers to the 'refocus' by the Respondent to aim this contention at smaller trees that lie within the proposed driveway corridor and although the Applicant makes reference to the Court's Conference of Expert Witness Policy and the need for the Respondent to seek leave of the court, the Applicant goes on to make submissions regarding those trees that lie within the proposed driveway corridor, referring to them by saying that "if it wasn't for those trees, there's no other trees on this site." (sic) (Tcpt, 4 December 2020 pg 29(9)) 3. In opening, the Respondent referred the Court to the Council's Assessment Officer's comments on the "landscaping component" – (Tcpt, 4 December 2020, p 8(45)). I accept with the Applicant that Tree 3 was identified as being significant, however, I do not agree that contention 2 relied solely on Tree 3 and I do not agree that the subsequent approved removal of Tree 3 results in Contention 2 being addressed or 'taken away'. 4. Differing from and inconsistent with the Applicant's submission to an extent, Mr Milligan's evidence in the Joint Expert Report incorporates the wording of the particulars of contention 2 when he notes at 2.2 that "Council's contention and the particulars relate to the indicative building footprint on Lot 1 and the incorporation of a second dwelling on the site and the impact on the existing canopy trees." Mr Milligan however, does go on to distinguish between the construction of the driveway and the proposed building footprint location within Lot 1 and considers the Contention satisfied and that "the consideration of further tree loss as a result of other works within the subdivision is beyond the scope of the Joint Report." (Joint Expert Report, 2 December at [2.4]). Mr Milligan's position, in the event that the Court does consider the impacts of other works, primarily the construction of the driveway on other canopy trees, is that "the loss of tree canopy as a result of the driveway is not significant in this instance, with ample opportunity within the lots for supplementary planting of canopy trees to replace trees removed through the driveway works." (Joint Expert Report, 2 December at [2.4]) 1. Mr Milligan's reliance on supplementary planting does not sit well with the Applicant's earlier submission that the Proposed Development is not for works and is merely lines on paper. Any supplementary planting is uncertain in substance and uncertain in terms of time as it may or may not take place at some time in the future. I note, as does Mr Mead at [1.46] of the Joint Expert Report, that the Proposed Development does not include any landscape plans and that the Court has no evidence of any supplementary planting of canopy trees as part of the Proposed Development. 2. The Respondent relies on the evidence of Mr Mead at [1.46] of the Joint Expert Report where Mr Mead disagrees with Mr Milligan's literal reading of the Contention and states as follows: "In my opinion, the layout of Lot 1, including the driveway is of relevance to consideration of the application. In my opinion, the proposal is inconsistent with the provision of clauses A4.1, B2.2, B4.6, B4.22, C1.1 and C4.7 of P21 DCP which have a focus on retaining and enhancing existing vegetation. The proposed subdivision results in the loss of native vegetation as a result of the driveway location and as a result with significantly change the appearance of the site from the street by virtue of the long, straight driveway, climbing the natural slope from the frontage." 1. I find that leave of the Court is not required by the Respondent as I am satisfied that the Respondent is not 'bringing in something new'. The wording of the contention when read together with the particulars of the contention, especially particular (a), as Mr Milligan correctly did at [2.2] of the Joint Expert Report, adequately frames the Respondent's concern about the loss of existing mature canopy trees (being in the plural and referring to more than one tree) resulting from the indicative footprint on Lot 1 and the incorporation of a second dwelling on the Site which 'directly attributes' to the said loss of trees. The particulars list and identify the relevant controls in such a way that leaves no doubt that the trees identified in the Arboriculture Impact Assessment prepared by "Growing My Way Tree Services" dated October 2017 and updated June 2018 are the trees of concern and as the Applicant identified, there are no other trees on the Site. The location of the driveway is a direct result of the indicative layout of the building on Lot 1 together with the provision of access to the second dwelling on Lot 2. I note also the Applicant's submission in reply that the applicant "experimented with access to the second lot on the other side. Other configurations, but having the diagonal line meant that the right of way was shorter, which then allowed more site area into the new Torren Title lot 2." (Tcpt, 4 December 2020, p 44(3)). 2. The removal of native vegetation is not consistent with the P21 DCP controls referred to by Mr Mead and listed in the SOFAC. It is agreed that the proposed driveway location will result in the removal of native vegetation and as the Applicant noted, once these are gone there are no other trees on the Site. 3. Notwithstanding my findings regarding the Applicant's cl 4.6 written request which is a jurisdictional prerequisite, I have considered the submissions regarding contention 2 and I find that contention 2 is well founded and I adopt the reasons set out by Mr Mead and for the reasons I have given in this judgment. Orders 1. The court orders that: 1. The appeal is dismissed. 2. The Applicant's Cl 4.6 written request justifying the contravention of cl 4.1 of the PLEP minimum subdivision lot size development standard is not upheld. 3. Development Application No DA2018/1066 for the subdivision of one lot into two lots, demolition works and construction of a driveway at 27 Kevin Avenue, Avalon, NSW legally identified as Lot 11 in Deposited Plan 12435 is refused. 4. Exhibits are returned except Exhibits A, 1 and 5. ……………………. E Espinosa Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2021