Land and Environment Court of New South Wales CITATION : Parrott v Kiama [2004] NSWLEC 77 revised - 16/03/2004 Lee Parrott Applicant PARTIES : Kiama Municipal Council Respondent FILE NUMBER(S) : 11149 of 2003 CORAM: Roseth SC KEY ISSUES: Development Application - Subdivision :- Planning principle: subdivision with building envelope LEGISLATION CITED: CASES CITED: DATES OF HEARING: 12/02/2004 DATE OF JUDGMENT: 03/11/2004 Mr M Mantei Kells Lawyers LEGAL REPRESENTATIVES: Mr P Moggach Kearns & Garside JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11149 of 2003 Roseth SC 11 March 2004 Lee Parrott Applicant v Kiama Municipal Council Respondent Judgment Introduction 1 This is an appeal against the refusal by Kiama Municipal Council (the council) of a development application to subdivide lot 72 DP 229951 Headland Drive, Gerroa into two allotments. The site 2 The site is on the southern side of Headland Drive. It has an area of 1,312m2, an average width of about 16m and a depth about 80m. It shares a rear boundary with two allotments that front Stafford Street. An existing house stands on the site. On either side of the site are several other allotments of similar size with houses near Headland Drive and deep open rear yards. The site is very steep with a fall from front to rear of 20m. The proposal and its history 3 The applicant proposes to subdivide the allotment into two parcels of 703m2 and 608m2, to construct a detention basin and absorption trenches and an elevated driveway to serve the battleaxe allotment,. 4 The applicant lodged the application in October 2002. Following notification, the council received 16 objections. In October 2003 the council accepted the recommendation of it planning staff to refuse the application. The applicant lodged the appeal in September 2003. Relevant legislation, planning instruments and policies 5 The Kiama Local Environmental Plan 1996 zones the site 2(a). The LEP permits the subdivision. Development Control Plan 32 – Kiama Subdivision Code (DCP 32) controls subdivision and drainage design. Section 5.4.2.2 requires the provision of interallotment drainage pipelines and easements to all lots which cannot reasonably drain to the street to which the lot fronts. The depth of interallotment drainage system shall be designed to be able to service the whole of the area of the lot. The issues 6 The council submitted a Statement of Issues under three major headings, namely · unsatisfactory treatment of stormwater; · unacceptable impact of the elevated driveway; · unacceptable impact on Stafford Street properties. Stormwater 7 The Court heard the evidence of Mr R King, an engineer with the council, and Mr G Reilly, an engineer retained by the applicant. They agreed that the proposed system was adequate to deal with stormwater on the site, as long as there was no malfunction. Mr Reilly thought that the imposition of a positive covenant on the title requiring the owner to maintain the detention tank was a sufficient guarantee against failure. Mr King disagreed. 8 Mr King told the Court that the council adopted the policy embodied in s 5.4.2.2 of the DCP about two years ago and has so far consistently applied it. The applicant said that it could not obtain an easement from either owner of the two Stafford Street properties it adjoins. 9 The opinions of both Mr King and Mr Reilly are valid. With a positive covenant requiring maintenance, system failure is unlikely. However, if it does occur, the consequences for downstream properties will be serious. A drainage easement providing an overland flow in case of failure is desirable. It is now required in all subdivisions in Kiama. 10 A major factor in my decision is the existence of a council policy that has been consistently applied since its inception. If the Court were to accept the creation of a new allotment that does not drain to a street, the council would find it difficult to uphold the policy in the future. This would be appropriate only if the policy was manifestly unreasonable or if its application to the subject site was inappropriate. Neither of these conditions applies. In the circumstances I accept that the council's policy should be upheld and that interallotment drainage is required for the subdivision. 11 The above conclusion is not, however, fatal to the application. It is open to the applicant to seek an easement either through this Court or the Supreme Court. If this were the only valid issue, I would grant deferred commencement consent to the application. Elevated driveway 12 The proposal includes a driveway between the existing dwelling and the east boundary of the site to give access to the battleaxe allotment. The gradient exceeds that recommended by the relevant Australian Standard, however the council does not make an issue of this, since it has approved other driveways with similar gradients. To cope with the slope of the site, the driveway is elevated above natural ground, at one point by more than 2.5m. Because of the height, the driveway will require safety barriers of 600mm on either side. 13 The council's planner, Ms T Smyth, considered the visual impact unacceptable. Mr T. Wetherall, the applicant's planning expert, said that landscaping would ameliorate the driveway's impact. In my opinion, the impact of the driveway on the subject property, the proposed battleaxe allotment, the adjoining property and Headland Drive is significant and adverse. 14 The reasons for the environmentally insensitive nature of the driveway are the steepness of the site, the constraint posed by the existing building and the applicant's desire to bring vehicular access into the battleaxe allotment. Clearly, the steepness of the site cannot be altered. However, the other two factors are not unchangeable. Either the existing dwelling could be modified or there could be a common arrangement for vehicular access to the two allotments that does not require the driveway to extend as far as proposed. In its present form the environmental impact of the proposed driveway is unacceptable. Impact on Stafford Street properties 15 The Court heard the evidence of Mr A Andrews, who lives at 63 Stafford Street, and read the objection of Ms C Marcocci, who lives at 65 Stafford Street. Both properties are to the south of the subject land and adjoin the proposed battleaxe allotment. The objectors are concerned that a dwelling built on the proposed allotment is likely to have adverse impact on their north-facing rear yards, which they use for outdoor living. 16 The applicant's response is that the subdivision by itself does not create an impact. Whatever impact a future dwelling might create can be assessed at the time when there is an application for a dwelling on the allotment. While the applicant has provided details of a possible dwelling for the proposed allotment, it does not accept a condition restricting future buildings to the envelope of the possible dwelling. Without such a condition there is no purpose in assessing the impact of the possible dwelling. Planning principle 17 When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them. 18 In this case the proposed battleaxe allotment is not small, though it is much smaller than its neighbours. It is environmentally sensitive because of its extreme steepness. It is in a location where the adjoining allotments all have rear yards and thus it breaks the established building line. Any future building on it will be closer to the Stafford Street properties than other houses are to their southern neighbours. The likelihood of adverse impact is high. This is not to say that an acceptable dwelling cannot be designed on the allotment, only that it would require a higher than usual level of design skill. The design of the future house (at least the outline design) is not a matter that is appropriately left till later. 19 For the above reasons the appeal is dismissed and the application refused. Orders 1. The appeal is dismissed. 2. Development application to subdivide lot 72 DP 229951 Headland Drive, Gerroa into two allotments is determined by refusal. 3. The exhibits are returned. _________________ Dr John Roseth Senior Commissioner 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.