Land and Environment Court of New South Wales CITATION : Stolk v Pittwater Council [2007] NSWLEC 561 APPLICANT Adrian Stolk PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 11128 of 2006 CORAM: Tuor C Development Application :- Subdivision and multi-unit housing KEY ISSUES: SEPP 1 objection to allotment size standard adequacy of car parking provided on site Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Pittwater Local Environmental Plan 1993 State Environmental Planning Policy No 1 - Development Standards CASES CITED: Winton Property Group Limited v North Sydney Council (2001) NSWLEC 46 DATES OF HEARING: 3 July 2007 EX TEMPORE JUDGMENT DATE : 6 July 2007 APPLICANT Mr Neil Howie, solicitor of Wilshire Webb Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr M. Staunton, barrister Instructed by: K. Arthur of Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 6 July 2007 11128 of 2006 Adrian Stolk v Pittwater Council JUDGMENT 1 This is an appeal against the refusal by Pittwater Council (the council) of a development application (No 365/05) to construct a multi-unit housing development containing five dwellings and basement parking for sixteen cars at 18 and 18A Barrenjoey Road, Mona Vale being Lot 1 and Lot 2 DP 773098 (the site). The application also involves subdivision of the two existing lots into two new lots. 2 The site, its context, the history of the application and the planning controls are in the Statement of Basic Facts. 3 The site is 1626.9 square metres. Existing Lot 1 has an area of 833 square metres. Existing Lot 2 has an area of 793.9 square metres. Lot 1 contains the Tex Mex restaurant and one residential dwelling, a number of outbuildings, surface car parking for six cars and a garage, which is currently used for storage. Lot 2 contains a single dwelling. The locality generally consists of multi-unit housing development. Planning controls 4 The site is zoned 2(a) Residential "A" under Pittwater Local Environmental Plan 1993 (LEP 1993). The Tex Mex restaurant enjoys existing use rights. The land was rezoned for the purpose of multi-unit housing on 24 January 2003. Under cl 21N(2) of LEP 1993 multi-unit housing is permissible with consent. The maximum density under cl 21N(3) is one dwelling per 200 square metres of site area. Clause 11 of LEP 1993 provides: 1. The aim of this clause is to create more varied allotment sizes, improve residential amenity and enhance the environment in relation to land to which the clause applies. 2. A person shall not subdivide land within Zone No 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside, unless each allotment to be created by the subdivision will have an area of not less than 700 square metres within Zone No 2(a) or 2(b) exclusive of any access corridor. 5 The proposed subdivision does not comply with cl 11(2). The applicant has submitted an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1). 6 Pittwater 21 Development Control Plan (DCP 21) is also relevant. Under pt B 2.5, the maximum density for multi-unit housing is one dwelling per 250 square metres of site area which is different to the standard in LEP 1993. Part D 9.6 of DCP 21 requires a 10 metre setback from the Barrenjoey Road frontage. The current building is built to the street alignment. The evidence 7 The Court heard planning evidence from Mr G Goodyer, for the applicant, and Mr C Wilson for the council. Ms S Clemsha, resident, of 4/2 Golf Avenue, Mona Vale, provided evidence on site. Her concerns related to the loss of privacy to her rear open space and upstairs bedroom resulting from overlooking from the upstairs bedroom windows in the proposal. The issues 8 The Statement of Issues contained five issues. Issue 2: (Water and Recycling), and Issue 3: (Site Coverage) were resolved by conditions. Issue 4: (Privacy), relates to the issues raised by Ms Clemesha. The proposal and Ms Clemsha's unit are each set back about 5.5 metres from the common boundary. This setback, combined with the proposed landscaping as well as the bedroom use, will mitigate any privacy impact to an acceptable level. A condition agreed to by the experts relating to landscape has been included. I accept the condition adequetly addresses the issue. 9 The key issues between the parties were whether the proposed Lot 2 is too small and the proposed car parking arrangements are satisfactory. Allotment size 10 Proposed Lot 2 is about 320 square metres. The proposed basement provides three staff parking spaces for the Tex Mex restaurant and one space for the residential unit. The inclusion of the basement stratum area would give a total area of about 368 square metres for Lot 2. 11 Mr Goodyer prepared a SEPP 1 objection. Both he and Mr Wilson agreed that the underlying objective of the standard in cl 11(2) is to ensure that allotments are of sufficient size to accommodate the existing and likely future development of the land, to maintain residential amenity and to retain the existing character of the area (or desired future character in an area undergoing change). 12 The experts held different opinions as to whether the underlying objective was achieved. Mr Goodyer considered that the most likely use of the site was its continued use as a restaurant as this was its highest and best use. The site area proposed was sufficient to accommodate this use in its current approved form, including the requirement for parking. He recognised that a change to the hours of operation of the restaurant use, to daytime use, would generate different demands for parking, which would not be able to be met by the proposed allotment. However, in his opinion the size of the existing site would also not be able to accommodate these demands and as such a change of use would not be appropriate for the existing or proposed allotments. 13 Mr Goodyer held a similar opinion in relation to a change of use to other commercial uses such as professional consulting rooms. In relation to residential use of the site Mr Goodyer recognised that the proposed site area of Lot 2 would not provide for a single dwelling house that complied with the requirements of the DCP 21. However, he considered that the existing and future character of the area was for multi-unit housing and that the proposed site area was consistent with the density of this form of housing. He recognised that some variation to the 10 metre front setback requirement in pt D 9.6 of DCP 21 would be required. Given the current use of the site he considered residential redevelopment to be unlikely. He stated that the proposal met the underlying objectives of the standard and that the SEPP 1 objection was well founded. 14 Mr Wilson considered that the site area of the proposed Lot 2 was not sufficient to accommodate its existing use as it did not provide the parking which currently existed on the site and was required by earlier approvals of the site. Further, Mr Wilson considered that any future use of the site would result in non-compliance with LEP 1993 and DCP 21 controls and would place limitations on a proposal being able to achieve the desired future character of the area. He stated that the aim of cl 11 is not to create more varied lot sizes less than the 700 square metre requirement but more so to create varied lot sizes greater than 700 metres. In his opinion the SEPP 1 objection was not well founded. Findings 15 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winton Property Group Limited v North Sydney Council (2001) NSWLEC 46. 16 The key disagreement between the parties was whether the proposal met the underlying objective of the standard, particularly whether the allotment would be of sufficient size to accommodate the existing and likely future use of the site. 17 In considering this issue I am more persuaded by the evidence of Mr Goodyer. The existing use, including the car parking, can be accommodated on the proposed site. This use is the highest and best use for the site and is therefore unlikely to change. The existing and proposed allotment sizes would be unable to accommodate the parking requirements of any proposal to operate the restaurant prior to 6 pm. Any such application would need to be considered by council on its merits but both experts agreed would be unlikely to be acceptable. 18 A proposal to use either the existing allotment or the proposed Lot 2 for another commercial use would also not comply with the parking requirements of DCP 21. Given its current use, it is highly unlikely that the site would be redeveloped for residential use, however, it would be able to accommodate a multi-unit development of a density envisaged in LEP 1993 which would therefore be consistent with the desired future character of the area. Given the existing and emerging character of the area I accept that a single detached dwelling on the site would be unlikely and would not be characteristic of the area. 19 I note the experts have agreed that the western wall of townhouse 1 be set back a further 1 metre. Accordingly, the eastern boundary of proposed Lot 2 can also move by 1 metre. This will provide a greater depth of site and provide a greater opportunity for compliance with the front setback requirement of DCP 21 in the unlikely event that the site is redeveloped. I have amended condition 6 accordingly. 20 In the circumstances of this particular case I find the compliance with the minimum allotment size in cl 11(2) is unreasonable and unnecessary and the SEPP 1 objection is well founded. Car Parking 21 In relation to car parking, Mr Howie, for the applicant, provided a comprehensive chronology of development consents for the restaurant. In summary, the existing restaurant operates under three development consents, namely: · Development consent no 87/153 dated 7 May 1987 (modified on 6 August 1987, 16 December 1987 and 26 October 1989) for alterations to and use of the vacant shop premises as a restaurant: · Development consent no 89/8 dated 5 January 1987 (modified on 14 March 1989 and 23 November 1989) for internal and external alterations to provide a first floor restaurant and extension and · Development consent no 89/460 dated 31 October 1989 to expand the ground floor restaurant into the existing pottery gallery. 22 Mr Howie submits that the three development consents for the use of the ground floor and part of the first floor as a restaurant required patrons to park on the Golf Avenue car park for which 12 car parking spaces had been provided and restricts use of on-site car parking to three staff members only. 23 Development consent 87/153 approved plans which included Plan No. 145/86/02. This plan showed 9 surface car spaces and parking for 4 cars in the garage. However, the conditions of approval limited the parking on site for the restaurant to three staff parking spaces and the payment of a monetary contribution for 12 car spaces at the Golf Avenue car park. The provision of 15 spaces complied with the council's DCP 2 that was the applicable parking requirement at the time. 24 Modification to development consent 87/153, approved on 12 August 1987, refers to plan no A8784/2 dated June 1987. This plan (exhibit 7) shows 6 surface car spaces and a garage and store. This modification did not involve any change to the approved parking arrangements as shown in the plan. 25 Mr Staunton, for the council, submits that the development consents have progressively approved the restaurant and its subsequent expansion. He acknowledges that the original approval required only 3 spaces for the restaurant to be provided on site but submits that the other spaces shown on the plan were required for other uses which then existed in the building (the residential unit and the pottery shop). He submits that at least 6 surface spaces are currently used by the restaurant and unit on the site and that these are what is required by the current approvals. Findings 26 I accept Mr Howie's submission. Each of the three development consents which granted approval for the restaurant addressed the parking requirements of the restaurant. These and the subsequent modifications limited the number of spaces required on the site to 3 staff places with 12 spaces provided in the Golf Street car park. More spaces are shown on plans and currently exist on site, however, from the evidence before me I cannot conclude that these spaces were approved or required to serve the current approved uses on the site. 27 I note that the car spaces required in the consents reflect the use of the restaurant commencing after 6 pm, which under DCP 2 generated a different and lesser parking rate than a restaurant use prior to 6 pm on the basis that commuter car spaces would be available. DCP 21 does not have the same distinction and the current restaurant use would not comply with the requirements of DCP 21. However, the question of whether the car parking for the approved restaurant and residential flat would comply with DCP 21 is not relevant to my consideration as the application does not propose any material change to these approved uses. 28 Consequently, the only question before me is whether the proposal provides the number of spaces required and approved under the consent for the restaurant use. From the evidence before me I am satisfied that the 3 staff spaces and the 1 residential space to be provided in the basement comply with the development consents for the site. Further, the disabled space at grade on proposed Lot 2 will be shared between the townhouses and the restaurant. The provision of the car spaces in the basement and the stratum arrangement are satisfactory. Orders 1. The appeal is upheld. 2. The development application (N0365/05) to construct a multi-unit housing development containing five dwellings and basement parking for sixteen cars and one disabled space at grade and subdivision of two existing allotments into two new allotments at 18 and 18A Barrenjoey Road, Mona Vale, is approved subject to the conditions in annexure A. 3. The exhibits, except exhibits A, B, C, D, E, 2, 3 and 6 may be returned. ___________________ Annelise Tuor Commissioner of the Court ljr 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.