Land and Environment Court of New South Wales CITATION : Admark Constructions Pty Ltd v Camden Council [2010] NSWLEC 1005 APPLICANT Admark Constructions Pty Ltd PARTIES : RESPONDENT Camden Council FILE NUMBER(S) : 10575 of 2006 and 10576 of 2006 CORAM: Hussey C KEY ISSUES: DEVELOPMENT APPLICATION :- Strata subdivision of multi housing units, live/work unit, studio apartment, parking and private open space amenity LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Camden Local Environmental Plan 47 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 CASES CITED: Carstens v Pittwater Council [1999] NSWLEC 249 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002]] NSWLEC 75 DATES OF HEARING: 14 December 2009 DATE OF JUDGMENT: 12 January 2010 APPLICANT Mr M Mantei (solicitor) SOLICITOR Planning Law Solutions Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffiths (solicitor) SOLICITOR Pikes Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 12 January 2010 10575 of 2009 Admark Constructions Pty Ltd v Camden 10576 of 2009 Council JUDGMENT Background. 1 These proceedings involve 2 separate appeals against council's refusal of development applications in respect of Nos 232 & 234 Mount Annan Drive, Mount Annan. The parties agreed to the appeals being heard concurrently and they involve: Appeal No 10575/2009; An appeal against the refusal of a strata subdivision of a recently created live/work dwelling into 2 lots comprising a 2 – bedroom unit on the upper level a commercial unit on the ground floor. Also, the conversion of part of the landscaped open space area into a car space at 234 Mt Annan Drive. Appeal No 10576/2009; An appeal against the refusal of a strata subdivision of a dwelling and studio into 2 residential lots and the conversion of part of the landscaped open space area into a car space at 232 Mt Annan Drive. 2 Both of these properties have been recently developed as part of the Mt Annan master plan. They are located in relatively close proximity to a small neighbourhood centre and were apparently created to provide for a variety of lifestyles in terms of dwelling types and working opportunities. 3 The issues identified for the appeal are summarised as: Permissibilty of the developments. The proposal is not in accordance the Tallowood Place Masterplan. Multi – unit housing is not permitted on the site. Parking impacts and adequacy of private open space. Public interest. Precedent. The sites 4 No 234; This site is described as Lot 9 in DP 1111684 and has an area of 290 sq m and a frontage of 10m to Mt Annan Drive. It backs onto and has access to Adriana Lane. There is a 0.9m wide easement along the western boundary, which is for common access use. 5 A 2–storey "live/work" dwelling has been constructed on this site. On the upper level there are 2 bedrooms, en–suite, bathroom and combined kitchen/living room. It has a 1.7m x 3.5m balcony off the living room. 6 At the ground floor level there are 2 separate office areas, bathroom and a lunchroom with a 4.8m x 1.7m verandah. This area is directly connected to a ground level open space of approximately 62 sq m, which is adjacent to a 2–car garage. 7 No 232; This site is described as Lot 8 in DP 1111684 and has an area of 379.3 sq m, with a 9.575m frontage to Mt Annan Drive and vehicular access at the rear onto Adriana Lane. 8 This site contains a 2–storey brick building that has 4 bedrooms and bathrooms on the upper level. On the ground level, there is a media room, lounge room, kitchen and family room, which is connected to a 4.5m x 3m covered verandah. 9 At the rear of this dwelling is a separate double garage and storeroom, over which a studio apartment (with an area of approximately 36 sq m) has been constructed. It has a 1m x 3.6m balcony, adjacent to the rear lane. 10 Both of these dwellings have access to a common open space area of approximately 80 sq m adjacent to the garage. This area has been substantially concrete paved. The Proposal 11 No 234; This proposal involves a 2–lot strata subdivision to effectively create 2 separate units comprising an upper level 2–bedroom unit designated (Pt 1) and a ground floor unit designated (Pt 2) for commercial use. It also involves conversion of part of the existing landscaped open area into an additional car space. This would then result in the ground floor unit (Pt 2) having 2 garages and a residual open space area. 12 The upper level unit (Pt 1) would include a ground level car space, resulting from the reduction in the existing open space area. Its main outdoor open space area is the existing 1.5m x 3.5m balcony, plus some additional ground area. 13 No 232; This proposal involves a 2–lot strata subdivision to effectively separate the studio into a new lot. This also involves the subdivision of the existing, open space area, which has been paved, to provide an additional on-site car space and a reduction in the open space area. Planning controls 14 Both applications are subject to the following common controls, which are primarily covered by the overall provisions of the Camden LEP No 47, under which the sites are in the Residential 2(d) zone. However, the detailed planning for this area was formulated by Landcom and primarily incorporated within a "master planning" policy approach. This was adopted to implement the relatively large Mt Annan release area. These controls run somewhat parallel with conventional planning controls. 15 The incorporated policies originate from a subdivision application, which was approved in 2003 for Landcom as part of the "Garden Gates Estate". Of particular relevance, this consent approved the creation of Lot 3535, which was a larger lot allowing further development. At the time of approval of the Garden Gates Estate, council approved a draft DCP, which set out development density standards for the estate, including those for single dwelling sites, dual occupancy sites, multiple dwelling sites. This draft DCP also identified some sites as "Residential 2" where multi – unit housing was permitted. However Lot 3535 was not identified as "Residential 2". Camden LEP 47 16 As noted, this is the primary control, under which the sites are within the Residential 2(d) Residential D (Release Areas) zone. Multi – unit housing and studio apartments are permitted with consent. 17 Accordingly, the following definitions apply: Multi – unit housing: means residential development (not being two – dwelling development) resulting in two or more dwellings on one lot, whether the dwellings are attached or detached, and includes town – houses and the like. Studio apartment; means a dwelling, attached to another dwelling, that: (a) does not have a gross floor area exceeding 60 square metres, and (b) does not have a separate title from the other dwelling, and (c) is located on an allotment that is not less than 325 square metres in area and that has at least two street frontages. Camden DCP 2006 18 The development control provisions of this DCP apply to the sites and relevantly refers to: Part D – Car Parking. Part E (Chapter 1) – Residential Subdivision. Part E (Chapter 2) – Detached Dwelling and Multi – Unit Housing. Part G (Chapter 11) – Specific Controls for Mt Annan. Tallowood Place Masterplan Policy (March 2005). (TMP) 19 This document was prepared by Landcom in the form of a masterplan (development control plan) to guide the development of Lot 3535 on the basis of it being designated a "mixed use village centre". It also contained a statement of environmental effects describing the proposed development. 20 The stated vision for this village centre included: the delivery of a village centre of character, a high quality environment for working, living and recreation. the economical use of land in this proposal is consistent with traditional village centres and will deliver sustainable community services and employment adjacent the excellent park recreation facilities. the type and diversity of housing proposed is appropriate to a village centre and will contribute to the choice and affordability of homes in the area, 21 The TMP contains detailed design criteria and use descriptions for the proposed buildings at both No 232 and 234. The intention for the live/work dwelling at No 234 is: "… to provide opportunities for the dwelling occupant to work from home. The spaces and character of the buildings mean that only businesses of low intensity would be suitable. A home office for a sole practicing accountant would be typical of the level of commercial activity that these buildings would support and what the location might sustain economically. The dwellings are rear garaged from the rear lane, which leaves the parking bays on the street free for occasional visitors. The floor plans are easily adaptable to allow for changing economic demand or an expanding family or business. These houses are intended to be a model for Landcom to develop in other village centres elsewhere in the metropolitan context where housing diversity and economic opportunity is thin. 22 When the TMP was adopted by council, it included conditions regarding the forms of titling various parts of the development. At the time of granting development consent for the Tallowood Estate, council resolved to endorse the masterplan as a policy document for the development of the precinct. Apparently this was exhibited at the same time as the DA and has been consistently applied by council since in assessing development applications. However it has not been adopted as a development control plan. The evidence 23 Detailed evidence in this matter was presented by: Ms S Morris; Director – Development & Environment. Ms A Trezise; Applicant's consulting planner. Permissibilty - No 234 Mt Annan Drive. 24 The submissions for council are that cl 10(3) of the LEP requires the consent authority to be satisfied that the carrying out of the development is consistent with the objectives of the zone. Also, cl 10(3) permits development with consent other than a purpose, which does not require consent or is prohibited. 25 As the existing live/work development was approved as a "dwelling", the proposed development would result in a change of characterisation due to the creation of the separate "commercial" unit. Consequently, "commercial premises" are prohibited except where: a they are part of a neighbourhood centre; or b as a home business. 26 With the separation of the commercial space from the dwelling by the proposed strata subdivision, it would no longer be ancillary to the dwelling and therefore prohibited according to the council's submission. 27 Against this, Mr Mantei submits that cl 12 of the LEP permits subdivisions and as the proposal does not contravene s 80(2) of the EPA & Act, the discretion to approve the development should be exercised, notwithstanding any contraventions of a DCP. Furthermore, he submits that the council has wrongly assumed that the ground floor unit will be commercial premises because there is a range of other uses permitted in the Residential 2(d) zone. 28 Mr Mantei also makes detailed submissions regarding the definition of commercial premises relative to the provisions of LEP 47 and in the context of the initial approval of Lot 3535 as a mixed –use precinct, within the neighbourhood centre. 29 However I do not consider it necessary to express a final opinion at this stage on the permissibility of the "commercial", or some other undisclosed use. Instead, it is apparent to me that assuming the proposal is permissible, then there are significant merit considerations, which in the overall context of this development are determinative. I deal with the application on this basis. Merits – No 234. 30 The approval of this development would result in the upper level residential unit (Pt 1) being separated from the ground floor unit (Pt 2), presumably being used for commercial uses to achieve consistency with the TMP provisions. This would significantly change the current situation of one property owner having control of the on-site parking and open space areas. Consequently issues arise concerning the provision of adequate parking and private open space for the individual properties. 31 With regard to the car parking issue, the planners discussed the lack of clarity regarding the definition of net floor area and disagreed on the likely car parking demand. However, I am satisfied to rely on the evidence of Ms Morris that the approval of this development would generate the need to provide 1 additional on – site car space for the residential unit (Pt 1), which is > 160 sq m and < 450 sq m, to satisfy the DCP Part D controls. Also, at least 2 car spaces (and possibly 4 according the DCP calculations) are to be maintained for the ground floor "commercial" unit (Pt 2). 32 Against this, Mr Trezise relied on a recent survey that there is surplus car parking adjacent to the neighbourhood centre and on-street. However I think these survey parking results should be discounted because the neighbourhood centre is not yet fully operational. Therefore I consider it appropriate to rely more on the provisions of the DCP so that adequate on –site parking is provided. 33 Consequently, the provision of the additional on – site car space requires the hard paving of approximately 18 sq m and reduces the existing (non-complying) open space area for the overall development from approximately 62 sq m to 44 sq m. From my observations at the view, this reduced area of "private open space" would have significantly reduced amenity and size according to the DCP provisions. 34 In reaching this conclusion, I have considered the applicant's suggestions about how this open space area could be divided, primarily as shown in Exhibit E. This proposal is to divide the remaining open space into: Section 2; approximately 4.2m x 5.3m between the garages and the rear patio of Pt 2, leaving a total area of approximately 32 sq m. Section 1; the remaining part of the open space with an area of approximately (3.3m x 4m) of 13.2 sq m. It connects the proposed new car space to the side access easement to enable access to the front door of the upper unit. 35 Whilst there are no specific controls for the amount of private open space in this type of mixed use context, I am nevertheless satisfied that the occupants of the ground floor unit would experience a low level of amenity from this area open space, particularly in the future if it was used primarily as a dwelling. 36 More importantly in my opinion, is the resultant private open space provision for the upper residential unit (Pt 1). Its primary open space area is the elevated balcony of approximately (1.7m x 3.5m) 6 sq m. When the aforementioned Section 1 area is annexed, this residential unit will have a combined area in the order of 19 sq m. 37 Considering then the lack of specificity for open space requirements for mixed – use developments, I think that the provisions of Part E – section 12.2 are reasonable to apply in the circumstances. This indicates that each dwelling is to have quality, useable open space, behind the building line to allow outdoor recreational and clothes drying areas. Such open space is to be a minimum area of 80 sq m for dwellings with 3 or less bedrooms. Consequently, I am satisfied that the requirement for 80 sq m would be reasonable for this size unit in the subject context. The DCP also requires part of the private open space to have a minimum dimension of 5m x 5m. 38 However the combined open space for this unit is in the order of 19 sq m. I consider this is inadequate and of poor amenity because: The elevated balcony area of approximately 6 sq m is constrained by its shape and restricts outdoor use, particularly dining and entertaining. The connection to the ground level Section 1 is via the stairs and down the side passageway, involving a travel distance of some 20m, which I consider inconvenient and unsatisfactory in terms of its connection to the main living areas and travel distance to a clothes line at ground level. The private open space does not contain a minimum area of 5m x 5m. The Section 1 component would have poor visual amenity if it is to be fenced to provide some security and privacy. But a reasonable level of privacy would not be achieved in any case considering it abuts the rear balcony of Pt 2 and its rear window, subjecting it to direct overlooking. Merits No 232 39 The proposed separation of the 2 dwelling components on this site initially raised concerns about the categorisation of the "studio" unit. According to Ms Trezise the existing development does not constitute a 'studio apartment' and therefore its subdivision is not prohibited by the LEP. However it seems to me that this unit can categorised a 'studio apartment' because it is a dwelling less than 60 sq m that is attached to the main dwelling via the common garage. On this basis I am inclined to the view that this proposed subdivision would not be permitted. 40 Notwithstanding this opinion, I otherwise consider that the relative merits of this proposal are determinative, even if the proposed subdivision was deemed permissible. Accordingly, this application also raises similar concerns about the resultant parking and open space amenity. At present, the occupants of this property have access to the 2 garages and combined outdoor open space area of approximately 80 sq m. 41 Insofar as I accept for assessment purposes that the proposal would constitute a form of multi unit housing, then the provisions of the DCP for parking and private open space would apply. 42 With regard to parking, a further on–site, paved space would need to be provided in the existing open space area. In this regard, I note that the area is already paved and I consider this diminishes its open space value. This amenity would be further reduced with regular car parking. I consider this site is too small to provide the level of on – site car parking required by the DCP and still maintain reasonable amenity. 43 An obvious consequence of providing this car space is that the open space area is reduced in size and its amenity considerably reduced. The remaining area is approximately 62 sq m. Application of the DCP controls would require the existing (large) dwelling component to provide an area of 100sq m and the separate studio an area of 80 sq m. In my assessment the 62 sq m is therefore unsatisfactory in terms of area provision. The DCP also requires a minimum private open space area of 5m x 5m. 44 In addition to this the controls in Part E state that: (a) Each dwelling is to have quality, useable private open space, behind the building line to allow outdoor recreational and clothes drying areas. 45 However the only private open space for the studio is its elevated balcony of (1m x 4.5m) approximately 4.5 sq m. I do not consider this balcony satisfies the private open space criteria because: This balcony is situated very close to the street boundary so that users would exposed and have little, if any privacy. The dimensions are minimal and significantly deficient in terms of the minimum 5m x 5m area, which severely restrict outdoor dining, entertaining and utility. It does not provide a suitable area for clothes drying. 46 In reaching this conclusion I have also considered Ms Trezise's proposition that whilst the private open space is small, this can be offset because the studio is in close proximity to the neighbourhood parklands that afford access to good recreational facilities. However I do not consider it reasonable to rely on this approach because the controls are explicit in what each dwelling is to provide in terms of private open space, rather than relying on external communal open space. Conclusions 47 Having considered the evidence, the submissions and undertaken a view, I do not consider either of these applications merit consent. Whilst they are separate applications dealing with different conceptual developments, nevertheless they are subject to the same planning regime. 48 The provisions of LEP 47 for the urban release area encompass this planning regime. However, presumably because of the overall scale of the development, the associated development controls have been implemented by way of a master planning approach, which has not been fully integrated with the other applicable DCPs. 49 This creates difficulties some in characterising various elements of developments, particularly within the neighbourhood centre environs where the subject sites are situated. Nevertheless, it is apparent to me that the proposed development within this centre was planned to incorporate innovative ideas for live/work dwellings and others combining studios in order to achieve "a high quality environment for working, living and recreation". 50 One of the difficulties identified in these appeals concerns the permissibility and subsequent subdivision of the proposed developments. In the case of the studio, this type of development is permissible but restricted in having a separate title. In other cases of 2 separate dwellings, the controls allow "multi unit housing" on a limited basis. 51 Of particular relevance is that the prevailing DCP 2006 limits multi unit housing in the Zone 2(b) to areas designated "Residential 2". The subject sites have not been designated as such, thereby not complying. Whilst I consider that technically the proposed development at No 232 does not comply with the controls, I have nevertheless considered the merits on the aforementioned basis. 52 A separate consideration arises with the proposal for No 234 if the ground floor unit is to become a separate "commercial premises". This would be prohibited except where it was part of a neighbourhood centre or as a home business. 53 Accordingly, the planners addressed this locational constraint concerning the delineation of the neighbourhood centre, as shown on Tallowood Place Master Plan at Folio 178 of exhibit 5. Insofar as Ms Trezise suggested a larger area including most of the surrounding residential properties, I am presuaded to otherwise rely on Ms Morris' opinion of the more restricted area that excludes the subject properties. On this basis the proposal for the separate commercial premises would not be permitted. 54 Notwithstanding this, I have assessed the merits of the proposals on the assumption that they would be permitted. In light of the previously mentioned planning regime, submissions were made regarding the reliance on the policies contained in the masterplan, as compared to the DCP provisions. 55 Particular reference was made to Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 where McClellan CJ said: 91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options. 92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows: the extent, if any, of research and public consultation undertaken when creating the policy; the time during which the policy has been in force and the extent of any review of its effectiveness; the extent to which the policy has been departed from in prior decisions; the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. 56 In the circumstances of the current matter, I am satisfied to rely on the evidence of Ms Morris that the master plan process adopted here as the policy for implementing the major scale Mt Annan development has involved consultation and that council has substantially adheres to its provisions in order to achieve a range of sensible planning outcomes. Therefore I give the policies contained in the Tallowood Master Plan determinative weight even though the detailed provisions were not integrated into the respective DCPs. 57 Insofar as reference was made to number of other similar type developments in Decora Street, Stipa Lane and Arista Circuit, I think they can be distinguished from the subject developments because of there separation from the neighbourhood centre and time of approval. I do no accord them any precedential weight. 58 Submissions were also made regarding the relevant matters for consideration with particular reference to Carstens v Pittwater Council [1999] NSWLEC 249 where Lloyd J said: 25. I thus conclude that the matters for consideration listed in s 79C(1) are not the only matters to which a consent authority may have regard. The listed matters are those which a consent authority must consider. The consent authority may also take into consideration other matters not included in those which are listed. Those other matters include, in the public interest, any matter which relates to the objects of the Act set out in s 5. This does not mean that the decision-maker may take anything into consideration. The relevant considerations are confined so far as the subject-matter, scope and purpose of the Act and any environmental planning instruments allow. The draft DCPs and the Values Statement in the present case are relevant as documents which relate to the matters described in sub-paras (i), (ii), (vi) and possibly (vii) of para (a) of those objects. In taking those matters into consideration the Commissioner made no error of law 59 I also follow this authority in giving determinative weight to the master plan provisions and particularly addressing the public interest issues that arise in this case. 60 Accordingly, in my assessment both these developments propose a major change in the character of these sites where the one owner is currently able to achieve a flexible use of the facilities on the site to achieve a high standard of amenity, as envisaged by the planning objectives. 61 In both cases, if the separate residential units were be created, my assessment is that they have inadequate, useable private open space. This situation is compounded by the need to transform some of the existing open spaces into parking spaces and increase impervious areas, which the DCP also seeks to avoid. I am satisfied that the negative effects on the amenity of this area warrant refusal of the applications. 62 I have also considered the possible precedential consequences on the basis of the authority in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002]] NSWLEC 75 where Lloyd J said: 29. In the present case the Senior Commissioner noted (at par [42]) that the notion of precedent is treated with considerable caution by the Court. He also found as a fact that one approval would tend to lead inexorably to a further three over time. He also noted the existence of 25 lots that could be seen as benefiting from what seems likely to be an inevitable consequence of approvals in this location. Importantly, the Senior Commissioner found (at par [44]) that the present proposals had an undesirable visual impact. In other words, the present proposals satisfied the criteria identified by Sugerman J which give rise to a valid consideration of precedent: the present proposals were not "unobjectionable" in themselves and there was a sufficient probability for further applications of undistinguishable developments of the same class and in the same locality. 63 The Court was informed that previous subdivision applications had been made in respect of the other similar properties in this neighbourhood. Whilst they have not progressed, this nevertheless indicates to me that there is a reasonable possibility of other similar applications, whose cumulative impact would be objectionable because this would thwart the intent of the master plan for the neighbourhood centre. 64 In the ultimate, it seems to me that there has been a high degree of investigation and planning to achieve the vision of a village centre that is of a character with a high quality environment for working, living and recreation. The approval of the subject developments would not achieve this vision and would most likely result in significant diminution of amenity for the residents. I therefore do not such development represents orderly development, which represents a reasonable balance between the private interests and the competing the public interest in achieving the intentions of the planning vision for the area. Consequently these applications fail on merit. Court orders 65 The Court orders: 1 Appeal No 10575 of 2009 is dismissed. 2 Development Application No 1093/2009 for a 2–lot strata subdivision of the live/work dwelling at No 234 Mt Annan Drive, Mt Annan is refused. 3 Appeal No 10576 of 2009 is dismissed. 4 Development Application No 1092/2008 for a 2–lot strata subdivision of the existing dwelling and studio at No 232 Mt Annan Drive, Mt Annan is refused. 5 The exhibits may be returned except for 1 and 2. ________________________ R Hussey 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.