Bosco v Gosford City Council [2005] NSWLEC 285

Land and Environment Court of New South Wales

CITATION : Bosco v Gosford City Council [2005] NSWLEC 285

APPLICANT John Bosco

PARTIES : RESPONDENT Gosford City Council

FILE NUMBER(S) : 10075 of 2005

CORAM: Bly C

KEY ISSUES: Development Application :- Three lot subdivision - scenic quality - privacy - vehicular access - water course - lot size - density - precedent

Gosford Interim Development Order 122 Gosford City Council Development Control Plan No. 130 - Subdivision of Rural and Non-Urban Land LEGISLATION CITED: Gosford City Council Development Control Plan No. 159 - Character Gosford City Council Development Control Plan No. 89 - Scenic Quality State Environmental Planning Policy No. 1 - Development Standards

CASES CITED: Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79

DATES OF HEARING: 18-19/05/2005 EX TEMPORE JUDGMENT DATE : 05/19/2005

APPLICANT Dr S Berveling, barrister SOLICITORS Longhill Planning LEGAL REPRESENTATIVES: RESPONDENT Mr M Fraser, barrister SOLICITORS PJ Donnellan & Company

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

19 May 2005

10075 of 2005 John Bosco v Gosford City Council

JUDGMENT 1 This appeal relates to development application 24634/2004 which is for the subdivision of 6 Pomona Road, Empire Bay into three allotments referred to as Lots 31, 32 and 33. Proposed Lot 31 is to have an area of 5,057 sq m, Lot 32 an area of 1 ha, and Lot 33 an area of 7,630 sq m. The hatchet, or T-shaped site, has a total area of 2.269 ha and is developed with an attached dwelling house and various outbuildings in relatively close proximity to Pomona Road. 2 It is situated on the lower north facing slopes of the Wards Hill escarpment with the rear larger part of the allotment having some relatively steep slopes. It is traversed by an intermittent watercourse. The south side of Pomona Road in the vicinity of the site is developed mainly with detached dwelling houses on allotments having similar sizes and configurations to that proposed in Lot 31. 3 Generally to the south of these allotments is bushland comprising a public reserve. This area is prone to bushfire. 4 The principal planning controls for this area comprise: * Gosford Interim Development Order 122 ("IDO 122"); * Gosford City Council Development Control Plan 130 - Subdivision of Rural and Non-Urban Land; * Gosford City Council Development Control Plan 159 - Character, * Gosford City Council Development Control Plan 89 - Scenic Quality. 5 Under IDO 122, Lots 31 and 32 are zoned, 7(c2) Scenic Protection (Rural Small Holdings). Lot 33 is zoned 7(a) Conservation and Scenic Protection, and comprises the entirety of land on this site that is so zoned. Subdivision is permissible with consent in both of these zones. 6 Written and oral (on-site) town planning evidence was provided by the Court appointed expert, Mr D Sneddon. Resident objector evidence was also given on site by Mr R Smith of 10 Pomona Road, and Mrs K Loccisano, of 16A Pomona Road. The main concerns expressed by these neighbours involves present storm water drainage problems, especially those affecting 8 Pomona Road. They were concerned to ensure that the proposal would not exacerbate this problem. They were less concerned with the now revised house location that should, subject to appropriate design, have little impact on them. 7 The application was advertised and five objections were received by the council. The matters of concern raised in these objections include sewage disposal and storm water drainage, adverse impacts on scenic quality, loss of privacy, traffic impacts and vehicular access, impacts on the water course, and precedent in relation to lot size. An objection from the Central Coast Community Environment Network Incorporated expresses concerns that the subdivision would lead to a degradation of the 7(a) zoned lands because of the need to clear vegetation, resulting weed invasion, and loss of habitat. Also the visual and scenic quality of these lands would be degraded. 8 The council subsequently determined that the proposal comprises prohibited development and thus cannot be approved. The reasons for this relate to non-compliances with the minimum lot size development standards in cl 18 of IDO 122 and the associated refusal of the Director General of the Department of Infrastructure, Planning and Natural Resources ("the Director") to grant her concurrence under State Environmental Planning Policy No. 1 - Development Standards ("SEPP 1"). Detailed reasons for the denial of this concurrence have been provided to the Court and these reasons are taken into account in this judgment. 9 Having considered the eight issues in the statement of issues provided by the respondent, Mr Sneddon reached a number of conclusions which are expressed in his report and which were modified somewhat following changes to the proposal and the provision of an SEPP 1 objection. 1. Approval of the subdivision would not be inconsistent with the relevant objectives of ID0 122, DCP 89, and DCP 159. 2. In relation to cl 18(4)(b) of ID0 122 he did not believe that the proposed subdivision would have any adverse cumulative effects in the locality. Similarly, in view of the prevailing subdivision pattern in the locality, the variation of the 1 ha standard for Lot 31 would be satisfactory. 3. He also expressed concerns in relation to the two lots that do not comply with the area requirements in IDO 122, but does not oppose the subdivision, taking into account the objection under SEPP 1. 4. He is now also satisfied that an appropriate building envelope can be provided which satisfies the siting location guidelines in DCP 159, and can meet bushfire safety requirements. 10 As for the matter of the revised proposed building envelope, I considered this matter on site and have no difficulty in agreeing with Mr Sneddon that a house in this location, properly designed would be appropriate. I also agree with him that a house in the suggested location would not have any adverse impacts on adjoining properties. 11 As for the matter of bushfire safety taking into account the applicant's hazard assessment report, and the evidence of the applicant's bushfire hazard consultant, Mr S McMonnies, I am satisfied that this matter is satisfactorily resolved. 12 Mr Sneddon was also concerned, as were several neighbours, at the proposed vehicular access arrangement. This has now been changed such that access is provided off Pomona Road via a right of way across Lot 31, thus alleviating his concerns. Again, I agree that this matter has been satisfactorily resolved. 13 This leaves the principal matter of the subdivision development standards. In this regard, and as indicated above, the council sought, pursuant to SEPP 1, the concurrence of the Director and this concurrence was declined, resulting in the council refusing the development application. I was informed during the hearing that but for the absence of this concurrence, the council would have no fundamental objection to the amended proposal. Despite this, it is appropriate that the Court give proper consideration to the concerns of the Director. 14 The concerns that form the basis of the denial of the concurrence application are articulated in the Department's letter of 17 May 2005. In essence, and relevant to my consideration of the SEPP 1 objection, these concerns include: - Whether the proposal would constitute an adverse precedent. - Cumulative impacts if the proposal precipitates further similar proposals. - Whether the proposal would have adverse impacts on adjoining properties and on the 7(a) buffer zone and the scenic attributes of the locality. More particularly this concern seems to rely in part on the potential large size of a future dwelling. - Whether the resulting increased density would adversely affect the character of the area. 15 Before dealing with these concerns I should outline the relevant development standards in IDO 122 and the applicant's response to these non-compliances. Clause 18(3) of IDO 122 sets a minimum area development standard of 40 ha for the 7(a) zone and 2 ha for the 7(c2) zone. Clause 18(4)(b)(ii) is one option that allows one or more lots of not less than 1 ha to be created in the 7(c2) zone where a monetary contribution is made for the acquisition of 7(a) zoned land or its embellishment. This is the option chosen by the applicant. 16 Clause 18(5)(b) relevantly provides a method of calculation based on the monetary contribution, the value of 7(a) land and the area of the 7(c2) land. This calculation, based on the agreed monetary contribution, and calculated to the nearest whole number, indicates that the number of lots that can be created is two. Hence Lot 32, having an area of 1 ha, meets these requirements. However Lot 31, having an area of just over half a hectare, does not. 17 There was no dispute that this area deficiency could be potentially overcome by a successful objection under SEPP 1. Similarly, Lot 33 does not comply with the 40 ha standard, and this area deficiency can also be dealt with under SEPP 1. The now provided objection deals with both of these development standards. 18 The form and content of the SEPP 1 objection is, in my opinion, consistent with the approach outlined by Lloyd J in Winten Property Group Limited v North Sydney Council (2001) 130 LGERA 79. The objection notes that the underlying purpose of the two development standards can, absent specific objectives, be gleaned from design objectives which are required to be considered in terms of cl 5(3) of IDO 122. 19 In relation to the 7(c2) zone, these objectives relate to the provision of a buffer zone to the 7(a) zone, protection of aesthetic and scenic values, and the economic provision of services. In relation to the 7(a) zone, the objectives include the conservation and preservation of areas of high environmental, visual and scenic value, habitat and ecosystem protection. They also seek to prevent cumulative adverse impacts associated with what might otherwise be minor developments. 20 The SEPP 1 objection provides a comprehensive response to all of these objectives, and having considered these reasons, I would adopt them. In so doing I particularly note that Mr Sneddon was of the opinion that the objectives of the two zones are met by the proposal. 21 I also agree with the conclusions reached, that the purpose of the standards will not be compromised by the proposal, and that the proposed departures from the standards would be well founded. Consequently compliance with the standards would be unreasonable in the circumstances. 22 I now return to the concerns of the Director, the first being the matter of precedent. Whilst there are, or were, three other close by lots having the same configuration as this site, two of these have already been subdivided into two lots for residential purposes. Conversely these two close by subdivisions may comprise a precedent for the subdivision of the third Lot at 26 Pomona Road and approval of the proposal would not change this. Also, the subject site is unique, taking into account its location and configuration and being the subject of two different zones. In these circumstances I agree with Mr Sneddon and do not accept that approval of this proposal can be viewed as a precedent. 23 If the site was entirely within the 7(c2) zone, subdivision might reasonably have followed the approach that appears to be available for No. 26 a not unreasonable outcome. I also note Mr Sneddon's advice that approval of this application would create one additional rural residential lot in a locality where there are currently 70 existing lots ranging generally in size from 5,000 sq m to approximately 2 ha and above. 24 For similar reasons, concerns relating to cumulative impacts are not problematical, especially given the fact that opportunities for subdivision in this particular locality adjacent to the 7(a) zone, are limited and subject to the same controls and processes as are involved here. 25 Despite this being a three lot subdivision this proposal will only facilitate the erection of one extra house, resulting in their being two houses on a total area (including the 7(a) zone) of about 2.3 ha, with proposed Lot 33 being required to be retained in conjunction with Lot 32. 26 Any other subdivision and dwelling house applications that might occur in the locality must be dealt with on their own merits, and if the impacts of those applications are unsatisfactory in a separate or cumulative sense, they can be refused. There is no evidence that this proposal will result in any adverse impacts that go beyond any reasonable threshold of acceptability. 27 As I have already indicated, I agree with Mr Sneddon that it is not likely that there will be any adverse impacts on adjoining properties. I also do not accept that a house in the location proposed, subject to appropriate building design in terms of drainage, excavation, height, size, colours et cetera, would adversely affect the land in the 7(a) zone, including its various attributes. Such a house could be designed so that it will not be visually prominent in the locality. 28 The final concern involves the increase in density of housing in this particular locality and the suggested erosion of the buffer zone. Clearly the proposal will, subject to the approval of a dwelling house on Lot 32, increase the residential density. This could have an effect on the ability of the land to provide a buffer between higher density urban areas and the conservation zone. The 7(c2) zone permits houses and as such this form of development is to be anticipated, but the density of development resulting from this subdivision will be greater than is anticipated by the lot size development standards in cl 18 of IDO 122. Despite this and taking into account the existing density and the surrounding pattern of development I am satisfied that the impacts resulting from this marginal increase in density will be minimal and of no determinative concern. As I have already concluded, an additional house in the location now proposed will not adversely affect land in the 7(a) zone. 29 The site has an extensive tree coverage that will be largely retained due to its location of the proposed additional house will not result in any significant loss of vegetation. In this regard, I also agree with Mr Seddon's conclusion that the proposal would meet the guideline in DCP 159, that these areas should remain as scenically distinctive semi-rural buffers preserving existing scenic qualities. 30 For these reasons I have decided that the SEPP 1 objection and the appeal should be upheld and conditional development consent granted.