Land and Environment Court of New South Wales CITATION : Racine and or v Lane Cove Council [2007] NSWLEC 589 APPLICANT Martin Marcel Racine and Christine Jane Wallace PARTIES : RESPONDENT Lane Cove Council FILE NUMBER(S) : 10461 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- demolition of an existing garage and an existing inground swimming pool to allow for the resubdivision of 2 lots into 3 lots - consistency with zone objective - character of area - amenity impacts LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Lane Cove Local Environmental Plan 1987 DATES OF HEARING: 13/09/07 EX TEMPORE JUDGMENT DATE : 13 September 2007 APPLICANT Mr D Wilson, barrister SOLICITORS Abelitis Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffiths, solicitor SOLICITORS Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 13 September 2007 10461 of 2007 Martin Marcel Racine and Christine Jane Wallace v Lane Cove Council JUDGMENT 1 COMMISSIONER: The proceedings were set down as a Preliminary Conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) to be heard on site on 13 September 2007. No agreement was reached between the parties as to the terms of a decision that would be acceptable to both parties in accordance with s 34(3)(a) of the LEC Act. The parties however consented to the disposal of proceedings without a further hearing in accordance with s 34(3)(b)(ii) of the LEC Act. The judgement provides the reasons for the decision reached on site and details contained within the Statement of Facts and Contentions. 2 This is an appeal against the refusal by Lane Cove Council (the council) of Development Application DA 322/2005 for the demolition of an existing garage and an existing inground swimming pool to allow for the resubdivision of 9 Gamma Road and 10 Alpha Road Lane Cove (the site) into 3 lots. 3 The proposed subdivision will create 3 lots, being: o Lot 1 - 818.48 sq m with a 20.115 m frontage to Alpha Road and the retention of the existing dwelling, o Lot 2 - 551.68 sq m with a 3.5 m battle axe frontage to Gamma Road and o Lot 3 -550.31 sq m with a 16.62 m frontage to Gamma Road and the retention of the existing dwelling. 4 As part of the development application, the applicant provided a conceptual dwelling design to indicate that a dwelling could be reasonably located on proposed Lot 2. 5 There is a slope of some 11 metres from the Alpha Road frontage to the Gamma Road frontage. There are number of trees located on the site however the most significant are two large gum trees located within the boundary of proposed Lot 2. 6 The site is within Zone No 2(a1) under Lane Cove Local Environmental Plan 1987 (LEP 1987). The proposed development is permissible with consent within this zone. Clause 9(3) provides that development consent shall not be granted unless the subdivision is consistent with the objectives of the zone. The relevant objective is: (a) to retain and where appropriate improve the existing residential amenity of a detached single-family dwelling area, and 7 Lane Cove Residential Zones Development Control Plan (the Residential DCP) applies. Part VII provides requirements for residential subdivision including minimum allotment sizes, minimum allotment dimensions, minimum access handle width and vehicular access. There was no dispute that the proposed subdivision satisfied the numerical requirements in Part VII. 8 Lane Cove Code and Development Application Checklist for Dwelling Houses, Fences, Private Swimming Pools and Outbuildings (the Code) applies insofar as it provides requirements for any dwelling that is to be located on proposed Lot 2. 9 The council raised the following matters in the Statement of Facts and Contentions: 1) the proposed subdivision will be inconsistent with the zone objectives, 2) the proposal will create lots that are inconsistent with the surrounding character and scale of residential development, 3) the construction of a dwelling on Lot 2 will create unacceptable amenity impacts on surrounding residential properties. 10 Mr Kerry Nash, for the council, and Mr Kevin Brodie, for the applicant prepared a joint report on the town planning issues. Additional evidence from local residents was on site by: o Ms Judy Dolin of 13 Beta Road, o Mr David Evans on behalf of his son the owner of 9 Beta Road, o Ms Allison Evans of 9 Beta Road, o Mr Tony and Ms Jill Polley of 7 Beta Road, o Mr Phil Hughes of 11 Gama Road, o Mr Kim and Ms Susan Loane of 7 Gama Road, o Mr Peter Tiffin of 1 Gama Road, and o Mr Peter Hoare of 12 Gama Road 11 The concerns expressed by the local residents relate to the change in character of the area through a denser subdivision pattern, potential tree loss and amenity impacts such as loss of privacy, overshadowing and loss of solar access. 12 With the benefit of the site view and an inspection of a number of the local residents properties I am satisfied that the proposed subdivision is acceptable for a number of reasons. 13 Firstly, it must be remembered that the development seeks only the subdivision of land and not the erection of a dwelling. The planning principle in Parrott v Kiama [2004] NSWLEC 77 acknowledges that if a subdivision provides constraints on future buildings in situations where the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours are likely and there is a need for a careful design to minimise any impacts then any building should be considered concurrently with the subdivision. 14 I do not accept that the site falls within any of the situations identified in Parrot or any other situation that would warrant the consideration of a dwelling in conjunction with the subdivision. The site has a slope but could not be considered to be steep to the point where a dwelling house would require an overly careful design. 15 Much of the resident evidence focused on the conceptual design provided by the applicant as part of the development application. Approval was not sought for this design so issues relating to loss of privacy, loss of sunlight and overshadowing are largely irrelevant in the consideration of the subdivision application. Even though the conceptual design breached a number of the requirements of the Code, I am satisfied that a dwelling house could be designed for a Lot 2 that would minimise any impacts on adjoining residential properties. The residents concerns on amenity issues are clearly best left until a specific development application is lodged for a dwelling on Lot 2. 16 Secondly, I do not accept that the character of the area will change to an unacceptable level. The existing lots within the immediate area are in the vicinity of 1000 sq m and while the proposed development proposes lots around 550 sq m, the Residential DCP anticipates lots of the size proposed in this application. As I understand the minimum lot area has been in existence for a number of years. It is clear that a dwelling on proposed the Lot 2 will be visible from a number of residential properties adjoining the site however this in itself is not a reason to refuse the application. To do so would be to give little or no weight to the Residential DCP. This would be clearly inappropriate given the findings in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 and Zhang v Canterbury City Council (2001) 115 LGERA 373. 17 Thirdly, there was no evidence to suggest that the two gum trees could not be adequately protected when a dwelling is constructed on proposed Lot 2. While the location of the two gum trees is clearly a constraint on any dwelling house but I accept that a competent architect or designer can adequately address the protection of the two trees. I note Mr Nash and Mr Brodie agreed on a condition to provide for the protection of the trees as part of this application. 18 Fourthly, I am satisfied that the proposed development is consistent with the relevant objective of the 2(a1) zone. While a dwelling on proposed Lot 2 will be visible from a number of adjoining residential properties I do not accept that this is a sufficient reason for a finding of inconsistency with objective (a). For a proper consideration it is necessary to take into account the form of development anticipated by the council planning controls. In this case, the proposed subdivision satisfies all numerical requirements within the Residential DCP and as such must be seen as consistent with what is anticipated within the zone. 19 The applicant opposes conditions 1 and 2 of the councils draft conditions of consent. These conditions provide for restrictions on the future dwelling house on proposed Lot 2 to single storey only and the use of highlight windows on the western elevation (condition 1) and a covenant to enforce condition 1 (condition 2). For reasons set out in the earlier paragraphs I am satisfied that the impacts of any design of a dwelling on Lot 2 are best left to the time when a development application is lodged with the council. This will allow a more thorough assessment of any potential amenity impacts. In my view, it would be unreasonable to place limits on any future design at this stage. 20 For the reasons mentioned in the preceding paragraphs, the Orders of the Court are: 1) The appeal is upheld. 2) Development Application DA 322/2005 for the demolition of an existing garage and an existing inground swimming pool to allow for the resubdivision of 9 Gamma Road and 10 Alpha Road Lane Cove into 3 lots is approved subject to the conditions in annexure A. 3) The exhibits are returned with the exception of exhibits 3, 4 and A. _____________ G T Brown 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. 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