Land and Environment Court of New South Wales CITATION : Brotherton v Sydney City Council [2004] NSWLEC 475 APPLICANT Anerys Brotherton PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 10425 of 2004 CORAM: Murrell C KEY ISSUES: Development Application :- Subdivision - impact on character of area and adjoining property LEGISLATION CITED: South Sydney Local Environmental Plan CASES CITED: DATES OF HEARING: 02-05/08/2004 EX TEMPORE 08/05/2004 JUDGMENT DATE : APPLICANT Mr I Hemmings, barrister McMahons National Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson, solicitor RESPONDENT Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 5 August 2004 10425 of 2004 Anerys Brotherton v Sydney City Council JUDGMENT 1 This is a verbal judgment for an appeal that I heard on Monday of this week. The appeal commenced on site for the property known as 4 Rippon Way, Rosebery. 2 The Court had the opportunity of hearing from a number of objectors on site. Some seven people gave evidence to the Court on the view and their objections were with respect to the character of the area and concerns about development of a dwelling house on the smaller rear lot that was proposed in the subdivision. 3 The application is for the subdivision of an existing allotment of land, that is some 854 sq m and 13.6 m at the street frontage and 10.5 m at the rear with side boundaries of 71 and 76 m. The property next door is No. 2 which has an area of 780 sq m and the property on the other side at No. 6 has 1166 sq m with 15.24 x 76 m boundary. 4 The area is one that is described as a low density area and in that regard there was evidence from council's heritage specialist in terms of the history of the area which I will refer shortly. The subject site is zoned Residential 2(a) under the South Sydney Local Environmental Plan and the objectives of the zone include: · "to preserve the amenity of existing low density residential areas and to nominate localities where future residential development of comparable density is likely to occur; · to ensure building form is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents of the existing quality of the environment; and · to provide opportunities for non-residential development". 5 The LEP contains few controls. The minimum lot size for Rosebery, Centennial Park and Moore Park is 230 sq m which is distinguished from the rest of what was previously known as the South Sydney Local Government Area where the minimum allotment size is 135 sq m. The date of the LEP is 1998. 6 The South Sydney Development Control Plan 1997 states that the emphasis of the plan is on the assessment of applications on merit and there is an explanation for the actual layout of the plan, that is the rationale for the elements and the objectives describe the primary purpose and intent of each element and the performance criteria set out the means to achieve the objectives with a number of controls. 7 Of particular relevance to this development application in my assessment is the section known as Site Planning, section E refers to the need for a site analysis and performance criteria for a site analysis. 8 The other relevant criteria are those contained in sections E, F and G of the Plan. The site layout refers to performance and takes into account the site analysis and ensures the attributes of a site, trees, solar access are maximised when establishing a good 'fit' and relationship between buildings on the site and neighbouring properties by maintaining similar lot sizes, subdivision and built form patterns to reinforce the existing urban fabric. This includes: lot sizes; shape; and orientation that reflect the intended land use density intensity of adjacent developments; avoid the creation of battleaxe lots and long and narrow blocks at right-angles to street frontages where allotments have irregular shapes such as battleaxe lots; development is restricted to the principal area of that lot; and has adequate dimensions for the siting of buildings. Other performance criteria include adequate provision for parking, vehicle access, etcetera and the protection of environmental features. 9 The Rosebery area is also known as a special precinct in terms of the DCP and the "special precincts" refers to Rosebery as "The area has unique character and heritage which has evolved since the establishment of the Rosebery Estate in 1912" and the DCP says it was designated as a conservation area but when the plan was made it was not a conservation area but rather it is an area or a "special precinct". 10 Its character is achieved by consistency of dwellings, shape and form, single storey detached houses, double-fronted mostly with gable ends to the street, and consistency of building materials. The DCP seeks to ensure the character of the Rosebery area is maintained and that changes are carefully designed and sympathetic to the original character of the houses of the area, provide guidelines for any alterations/additions and minimise adverse impacts on adjoining properties. 11 The history of Rosebery is stated in the DCP and it was influenced by the ideals of the 19th century "Garden City Movement" and the garden cities or suburbs attempted to combine the natural advantages of country living with the social advantages of living in towns. Unlike most examples of garden city planning in Australia Rosebery was planned as a model suburb with detached housing and a spacious landscape setting. It was located close to possible industrial employment sites and this was the underlying assumption in the planning and promotion of the Rosebery Estate. 12 The original plan of John Sulman incorporated public and community facilities and land contours are used as a basis of design. The Rosebery Estate, was subdivided in 1914 by the town planning company of Richard Stanton, also responsible for the Haberfield Estate, and it is noted that as late as 1924 there were still large unoccupied areas within the estate suggesting the outbreak of the war and the lack of public acceptance restricted the estate's success. 13 Once subdivided each land title was created with the same covenant. The covenant established a framework that has maintained a recognisable neighbourhood pattern and character, despite a number of unsympathetic alterations and additions over the years. Large allotments with large back yards resulting from the original subdivision have been retained. 14 There are also notes in this section about the architectural styles of the dwellings with the comment that the dwellings are of different design but they do have common themes in terms of being double-fronted and generally with a driveway accessing garaging at the rear of properties. The covenant was that one had to "erect a double-fronted cottage of one storey and shall not erect more than one residence on each 40 foot frontage and the dwellings were to be brick and stone, tiled or slate roofs, and twenty feet from the street and they were to cost no more than four hundred pounds". 15 The precinct can be described as generally intact. There was evidence to the Court that there have been two subdivisions approved by the council; one on the corner of Gardeners Road at No. 400 which is a corner allotment, and each property is in excess of 400 sq m. The other subdivision is the one known as No. 33 Rosebery Avenue and it is noted that it created a lot of 337 sq m. (This is not a corner allotment). 16 The proposed subdivision proposes two lots, as I have said, with the total area of the existing lot being 854 sq m. It is proposed that the front lot, Lot 1, has an area of 590 sq m which includes 144 m for an access handle to the rear allotment, Lot 2, which has a site area of 264 sq m. The without prejudice conditions proposed by the council have a condition to the effect that the rear lot was to be increased to 360 sq m however it is also noted that the applicant objected to such a condition being imposed. 17 The council provided a statement of issues to the proceedings Exhibit 9 and I will not reiterate it here but the issues can be categorised (as proposed by the applicant's advocate) as: · tree removal; · traffic noise; · lot size; · traffic safety; · streetscape and · precedent. It was submitted that the fundamental or principal issue in the proceedings is the change to the subdivision pattern and I would agree with that summation in terms of the significant or determinative issue in this matter. 18 The area is one that has a number of blocks within the area. To the west of the subject property there is Dalmeny Avenue and to the north of the subject property is Kimberley Grove which also has large allotments generally of a larger size than many contained within the area. 19 Rippon Way has large allotments and the average size is about 850 sq m. The medium lot size in Kimberley Grove is about 900 sq m. To the south of Rippon Way is Trevilyan Avenue, Asquith Avenue and there is a regular consistent subdivision pattern within the area. The council provided a table which shows the lot sizes within the area and as I stated the minimum is in the order of 400 for Gardeners Road, 337 for one in Rosebery Avenue. 20 Precedent was cited as something that is a relevant consideration for the Court's assessment in this application. The issue is also whether the subdivision as proposed is objectionable in itself irrespective of the issue of precedent. The applicant provided to the Court evidence of an indicative building that could be erected on the subject rear allotment such that it would be a single storey development and the issues of amenity were matters that were discussed between the experts. 21 On behalf of the council expert evidence was given to the Court by Ms Christine Edney, an assessment officer with the council, and the heritage specialist Ms Sherry Kemp. For the applicant evidence was given to the Court by Mr Andrew Darrock and there were joint reports also submitted to the Court. 22 Mr Darrock was of the opinion that the subdivision pattern was invisible and it was the urban form that was important in terms of this area. He also stated that in his opinion the minimum lot size of some 230 sq m in the LEP encourages second dwellings because there are no prohibitions or other controls which would indicate that developments of this size should not be approved. He did agree however that the allotment size does contribute to the special character and he was of the opinion that the special character of the area is more important or demonstrated more in terms of the streetscape and that the proposed development will not impact in that regard. He also noted that there are many lots within the street and within the special precinct area that have developments at the rear in terms of large sheds, rumpus rooms, and perhaps flats. 23 Behind the subject property on the adjoining allotment it is noted that there is an old masonry stable which no doubt reflects the heritage of the area as well. Ms Edney was of the opinion that in terms of council's controls and in terms of the special character of the area that whilst subdivision is permissible she is of the opinion that it is more appropriate for corner lots in terms of not impacting on the special character of the area. She agreed that there are many structures at the rear of properties but they did not read as dwelling houses but they were ancillary to the main dwellings on the subject allotments. 24 In my assessment I have concluded that the proposed subdivision does not warrant approval on the basis that the special character of the area is one that is demonstrated by the consistency in lot sizes. Whilst it is not a conservation area it is a special precinct and the history of the area must be taken into consideration in the assessment of this application. Furthermore, it is relatively intact, in fact the whole of Rippon Way is intact in terms of the presentation of the subdivision pattern which can be seen from the cadastral boundaries located on the aerial photograph. 25 The history of the area must be taken into consideration in an assessment of this application and the character of the area in my assessment would be changed if there were battleaxe allotments provided at the rear of the properties in this special precinct area and in particular in terms of this street of Rippon Way. 26 The controls that council has in its development control plan also in my opinion indicate that battleaxe allotments should not be encouraged and whilst the proposed subdivision is above the minimum allotment size that is merely a numeric consideration and in the Court's merit consideration of the application it fails in that it would be out of character with the area. 27 Subdivisions are not merely lines on plans or maps, they very much are a part of the development of an area and the fact that the streetscape would not be changed significantly is not the only issue. The rear property will be visible from the street, although the dwelling may not be overly intrusive, nonetheless the rear lot would be higher than the street frontage and served by a right of way. I am also strengthened in my refusal of the development application in that No. 4 has already been subdivided and it is smaller than the majority or many of the lots in Rippon Way except for No. 2 which was subdivided from No. 4 in the mid-1950s and these were originally one lot in the original subdivision layout of the special precinct of Rosebery. 28 The subject lot is narrower than other lots in the street. It does not maintain the 40 foot minimum, and many of the lots in the area are in excess of this. The access way or the access handle is relatively narrow, some 3 m. The narrowness is not determinative in this appeal but nonetheless it is indicative of a tight subdivision but moreover it would be out of character with the area. 29 The dwelling on the adjoining Lot 2 which was subdivided from the subject lot extends to within 900 mm of the common boundary with many of the windows of the main living areas onto the side boundary and the proposed driveway narrows to 2.8 m at one point although it is recognised that the hot water tank could be moved from the existing dwelling to provide a 3 m right-of-carriageway. 30 These issues in terms of the amenity of the adjoining house are somewhat secondary to the main reason for my refusal which is to preserve the subdivision pattern of this special precinct. They are associated impacts that in themselves are not fatal to the application but they are also symptomatic of the fact that the character of the area would be changed by allowing a small rear allotment behind the subject site. 31 An issue in these proceedings is also that of precedent. Although precedent is not determinative in itself as the subdivision in my opinion is not appropriate per se. But the issue of precedent in terms of preserving the special precinct area does come into play and in terms of the other allotments in the street or within the area especially as the subject lot is smaller than many other property owners may seek similar battleaxe configurations in the street and the area. And clearly such further subdivisions would incrementally change the character of the special precinct and Rippon Way. 32 The council was of the opinion that the proposed subdivision was not appropriate in terms of the special character of the area having regard to the heritage or history of the area. The fact that the subject site is not in a conservation area does not diminish the importance of the subdivision layout and the consistency that should be maintained in terms of the character and history of the area. I am of the opinion that the character of the area would be undermined by this battleaxe subdivision and clearly the controls in council's development control plan are to avoid the relation of battleaxe lots and long narrow blocks at right angles to street frontages. 33 On a merits assessment the proposed subdivision is not one that warrants approval in the Court's assessment. As I stated I am further reinforced by my conclusion that the subject lot is smaller than many in the area and the approval of this battleaxe allotment would readily invoke further applications which would diminish and have a detrimental impact on the special character of the area. 34 It is also noted that the subject lot is also narrower at the rear apart from being narrower at the street frontage than the majority or if not all of the lots in the subject area of Rippon Way. By way of comment while council's minimum allotment size of a 230 sq m may encourage applications I must give proper and genuine consideration to the development control plan in terms of the avoidance of the creation of battleaxe allotments performance criteria contained in Pt E of the development control plan. 35 The council may wish to revisit its controls in terms of clearly articulating the importance of not only the historic significance of the area, the special precinct, but the fact that it has remained intact to this point in time is rather unique in its location and proximity to the city and whether a conservation area would be appropriate. I make this by way of comment, nonetheless I am satisfied that the existing controls provide me with the basis for the refusal of the application on a merits assessment. 36 Therefore on the basis of my assessment the formal orders of the Court are: 1. The appeal in respect of the property known as No. 4 Rippon Way, Rosebery, is dismissed. 2. The development application submitted to Sydney City Council, and as amended, for the subdivision of the above land into two lots is determined by the refusal of consent. 3. The exhibits are returned. ___________________ J S Murrell Commissioner of the Court rjs 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.