Provincial Planning Pty Ltd v Hawkesbury City Council [2004] NSWLEC 375

Land and Environment Court of New South Wales

CITATION : Provincial Planning Pty Ltd v Hawkesbury City Council [2004] NSWLEC 375 APPLICANT Provincial Planning Pty Ltd PARTIES : RESPONDENT Hawkesbury City Council FILE NUMBER(S) : 10291 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- Consent orders - Subdivision of land Hawkesbury Local Environmental Plan 1989 LEGISLATION CITED: Draft Hawkesbury Local Environmental Plan 1989 - Amendment No. 130 Hawkesbury Development Control Plan CASES CITED: DATES OF HEARING: 21/06/2004 EX TEMPORE 06/21/2004 JUDGMENT DATE :

APPLICANT Mr A Pickles, barrister

LEGAL REPRESENTATIVES: RESPONDENT Mr G Reilly, solicitor SOLICITORS Abbott Tout

JUDGMENT: - 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

21 June 2004

10291 of 2004 Provincial Planning Pty Ltd v Hawkesbury City Council

JUDGMENT 1 This appeal relates to Development Application No. 1192/03 for the subdivision of No 3 Monti Place, North Richmond into 2 lots: · Lot 1 – 483 sq m · Lot 2 – 529 sq m (including the access way) 2 Having considered the various applicable statutory controls and the report of the Court-appointed joint expert, I propose to uphold the appeal and issue the orders by consent as sought. I have come to this conclusion by taking into account the merits assessment undertaken by Mr Falson and his comprehensive analysis of the statutory controls. I also note that the application was advertised and there were no objections. 3 The first of the statutory controls comes from the Hawkesbury Local Environmental Plan 1989 ("the LEP") which contains objectives for the 2(a) Zone in which the site is located and I am satisfied with Mr Falson's analysis and agree that those objectives are met. I also agree that the numerical requirements of the LEP are met. 4 Next is the Hawkesbury Development Control Plan, ("the DCP") which contains a number of applicable general principles and objectives, which Mr Falson has analysed. Those principles include the need to undertake subdivision in an environmentally sustainable manner, the addressing of long-term planning objectives and the provision of lots in locations and of sizes consistent with other objectives, appropriate access to the lots and importantly, to ensure that all lots created are physically capable of development. 5 More particularly in terms of residential access, the DCP requires that vehicular access to all lots within the subdivision is simple, safe, and direct, and that such access ways do not detract from the amenity of the relevant locality. It requires that access ways should have a minimum width of 4 m and a sealed pavement of 2.5 m. The proposal does not comply with this requirement which in part seeks to facilitate an appropriate streetscape and by ensuring that satisfactory landscaping can be provided. 6 Mr Falson examined this aspect in detail and noting the proposed access-way's relationship to adjoining access-ways and development, he was comfortable that there will not be any loss of residential amenity for the two adjoining dwellings. There being no sensitive components of adjoining dwellings adjacent to the driveway, he believed that the access to the proposed new lot at the rear would be satisfactory. 7 Having looked at the aerial photograph, I understand Mr Falson's evidence in this regard and accept that appropriate access will be provided and that there will be no adverse impacts on the streetscape. 8 He also examined the requirements of the DCP and their application to the proposal in terms of lot size and shape, solar access, and lot-orientation and was able to conclude that these matters were met and I see no reason to disagree with him. Overall, and importantly, he concluded that there is no reason to believe that a suitable design for a dwelling house could not be provided for this lot where that a dwelling house would not have adverse impacts on the neighbouring properties. 9 This brings me to draft Amendment No. 130 to the LEP, which proposes to rezone the site to "housing/cross-hatched". This LEP would have the effect of requiring in this locality subdivision for residential lots to have a minimum area of 700 sq m, for internal lots. This proposal exhibits a significant non-compliance with this requirement. 10 Mr Falson again most helpfully in his report takes us through the objectives of this new sub-zone which relate to the provision of low density housing, the protection of the character of traditional residential development and streetscapes, the retention of existing character, protection of the natural amenity and ecological processes in the area, compatibility with the character of the living area where development has a domestic scale and character. More particularly in relation to subdivision, the draft LEP seeks to ensure that subdivision is controlled so that the provision for water supply and sewage disposal on each resultant lot is satisfactory to the council and to ensure that development does not create unreasonable demands on the present or in the future for the provision of extension of public amenities or services. 11 In relation to the more general amenity aspects of this proposal, it is clear that a subdivision per se has few direct amenity consequences. But in considering such matters, one needs to take into account the likely future character that would result from the development of the new lot. Here again I accept what Mr Falson has said that an appropriate dwelling house, including access, is capable of being designed and constructed on this site such that amenity impacts on neighbouring properties and the streetscape, would be entirely satisfactory. 12 In relation to the matters of water supply and the provision of services, I again accept, there being no evidence to the contrary, that these objectives would be met. 13 In his report, Mr Falson goes on to acknowledge that the purpose of Amendment No. 130, taking into account the proposed 700 sq m development standard, was not to provide for lots as small as is proposed in this application, this not being one of the more "highly accessible areas" where lot sizes are smaller, having better access to shops and transport. 14 I nevertheless accept that the aims of the draft LEP are met and despite the non-compliance with the 700 sq m standard, I accept that, in the context of existing development in the locality, and bearing in mind what I have already said about the absence of amenity impacts on the locality generally, the proposal would be satisfactory. 15 It therefore makes little difference that an officer of the Department of Infrastructure Planning and Natural Resources has indicated that the draft amendment in terms of its processing could not be said to be "certain and imminent". 16 I have therefore decided to uphold the appeal by consent and make the following orders.