Tenhave v Wollongong City Council [2010] NSWLEC 1361

Land and Environment Court of New South Wales

CITATION : Tenhave v Wollongong City Council [2010] NSWLEC 1361

APPLICANT Richard Tenhave PARTIES : RESPONDENT Wollongong City Council

FILE NUMBER(S) : 10774 of 2010

CORAM: Tuor C

DEVELOPMENT APPLICATION :- Subdivision KEY ISSUES: size and configuration of proposed lots compatibility with character of other lots and environmental constraints weight to be given to local environmental plan given the savings provision

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Wollongong Local Environmental Plan 1990 Wollongong Local Environmental Plan 2009

Parrot v Kiama Council NSWLEC 77 CASES CITED: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279

DATES OF HEARING: 29/11/2010

DATE OF JUDGMENT: 31 December 2010

APPLICANT Mr R Tenhave LEGAL REPRESENTATIVES: RESPONDENT Mr J Reilly, solicitor of Wollongong City Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

31 December 2010

10774 of 2010 Tenhave v Wollongong City Council

JUDGMENT 1 Commissioner: This is an appeal against the refusal by Wollongong City Council (council) of a development application (DA-2009/713) to subdivide lot 2558 DP845702, known as 49 Taminga Crescent, Cordeaux Heights, into two lots (site). 2 The main issue between the parties relates to the size and configuration of the proposed lots and whether they are consistent with other lots and the character of the area. Site and locality 3 The site is located on the eastern side of Taminga Crescent. It is trapezoidal in shape, with an area of 1,576sqm. The front of the site is occupied by a split level two storey house with driveway access along the northern boundary. The site falls steeply to the rear from RL 98m (east of the dwelling) to below RL 88m. The locality is a recent subdivision with large houses on large lots. The proposal 4 The application is to subdivide the site into two lots being: * Lot 1: with an area of 1008sqm. The proposed lot includes an area of land which contains the existing dwelling to the west of lot 2, a narrow strip of land that adjoins the southern boundary of lot 2 and links to an area of land that adjoins the eastern boundary of lot 2. Lot 1 is burdened by a right of carriageway and drainage easement. * Lot 2: with an area of 568 sqm (543 sqm excluding the service handle). It is benefited by a right of way, and burdened by a restricted building zone and an easement for drainage and sewer main. The proposed building envelope (10m x 15m) is sited towards the western end of the lot and an elevated platform for two cars (6mx6m) adjoins the north western part of the lot. Planning Controls 5 The site is zoned 7(c) Environmental Protection Residential under Wollongong Local Environmental Plan 1990 (WLEP 1990). 6 Clause 9(3) of WLEP 1990 provides: Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 7 The objectives of the 7(c) zone are: (a) to cater for limited residential and village development in selected areas possessing special environmental qualities or that may be affected by environmental hazards, and (b) to allow some diversity of activities that will not prejudice achievement of the objective referred to in paragraph (a) or detrimentally affect the environmental quality or character of the locality or the amenity of any existing or proposed development in the locality. 8 Clause 10(1)(a) of WLEP 1990 requires consent for subdivision. And cl 12(1) permits a maximum floor space ratio (FSR) of 0.3:1 for a building in the 7(c) zone. 9 Wollongong Local Environmental Plan 2009 (WLEP 2009) was gazetted on 26 February 2010 after the lodgement of the development application. Clause 1.8A provides: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not finally been determined before that commencement, the application must be determined as if this Plan had not commenced. 10 WLEP 2009 is therefore a proposed instrument and a relevant consideration under s79C(1)(a)(ii) of the EPA Act. The parties disagree on the weight to be given to WLEP 2009 which is discussed below. 11 Under WLEP 2009 the site is zoned E4 Environmental Living. The objectives of the zone are: * To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. * To ensure that residential development does not have an adverse effect on those values. 12 Clause 2.6(1) permits subdivision with consent. 13 Clause 4.1 controls the minimum subdivision lot size. The objectives of the clause are: (a) to control the density of subdivision in accordance with the character of the location, site constraints and available services, facilities and infrastructure, (b) to ensure lots are of a sufficient size and shape to accommodate development. 14 Clause 4.1(3) specifies a minimum lot size of 1000sqm for the site. Clause 4.1(5) excludes the access handle from the area of the lot. 15 Wollongong Development Control Plan 49 – Residential Development (DCP 49) is relevant. It applies to all residential development and includes provisions for infill residential subdivision including a minimum building envelope of 15m x 10m (s 7.1) and a minimum site area of 550sqm for battle axe allotments (s 7.1). 16 Section 8 of DCP 49 provides requirements for subdivision of Environmental Protection zoned land including a buildable area of 350sqm and a total lot area of not less than 650sqm (s8.1). Evidence 17 The Court visited the site and heard evidence from a number of residents who were principally concerned that the subdivision did not comply with the minimum lot size and that the development of a dwelling on lot 2 would be uncharacteristic of the area. They stated that the area was predominantly large lots and that houses were built close to the road near the ridge with a large green strip at the rear. The outlook from their properties was predominantly to trees and open space. A dwelling at the rear of the site would impact on their outlook and their enjoyment of the area. 18 Ms V Lee, planner, provided a Statement of Evidence for council. She was not required for cross examination. The applicant did not provide any expert evidence but addressed the contentions raised by council and Ms Lee's evidence in the Statement of Facts and Contentions in Reply and through submissions. 19 The key disagreement between the parties is whether the proposed subdivision is consistent with the character of the area. Council's evidence 20 Ms Lee considers that the proposed subdivision is not consistent with the objective of the 7(c) zone in WLEP 1990 to cater for limited residential development. In her opinion the proposal also does not meet the objectives or controls for subdivision in the Environmental Protection zone in s 8 of DCP 49. 21 Ms Lee considers the characteristic elements of the 7(c) zone include: * significant vegetation, particularly at the rear of the properties; * larger lots; * dwellings located on or near the ridge line rather than down the slope; * development that generally follows the topography; * significant private open space for vegetation. 22 Ms Lee states that the proposal is inconsistent with the character of the area as it is smaller than the surrounding lots; requires modification to the topography for the driveway and parking space; results in a dwelling in close proximity to the existing dwelling on the site which would be located down slope from other dwellings with limited open space and unacceptable visual impact. 23 Ms Lee states that lot 2 is 540sqm, excluding the access handle, which does not comply with the minimum required area for battleaxe allotments of 550sqm in s 7.1 of DCP 49. The total area of lot 2 is 568sqm and its buildable area is about 340sqm, however, when the restricted building zone is excluded this is reduced to about 150sqm. Ms Lee considers these non compliances with s8.1 of DCP 49 do not meet the objectives for the controls. 24 Ms Lee also considers the irregular configuration of Lot 1 to be uncharacteristic as part of lot 1 is "isolated" from the existing dwelling by lot 2. Ms lee questions the accessibility, usefulness and amenity of this part of lot 1 and considers its purpose is to enable the existing dwelling to comply with the FSR of 0.3:1 in WLEP 1990. The applicant's evidence Mr Tenhave contested Ms Lee's evidence and submits that the proposal is consistent with the character of the area for the following reasons: * a large number of lots in the area in both the 7(c) and the 2(a) zone are between 600-800sqm; * the car access follows the topography and the car space is elevated about 3.8m above the ground; * there is limited removal of trees; * the existing dwelling would be elevated above any dwelling on lot 2 and therefore would look over it, as would other dwellings in the area; * the location of any dwelling at the rear of the site is appropriate and will not result in adverse visual impact. Any dwelling would be single storey, at a lower level than other dwellings and would be screened by existing vegetation; * the open space for both lot 1 and lot 2 is more than adequate. 25 Mr Tenhave submits that the proposal provides a buildable area of 350sqm as required under s8 of DCP 49. In his opinion, the requirement for a total lot area of 650sqm is unreasonable as density is controlled by FSR and there is no need to provide more land than necessary. The non compliance with the minimum lot size specified in s 7 of DCP is minor and could be adjusted to comply if necessary. 26 Mr Tenhave submits that the open space at the rear of lot 1 will ensure that the existing trees in this location are retained to provide screening of the site. The trees provide amenity for both lot 1 and lot 2 and for the surrounding residents. Findings 27 The area of lot 2 is slightly below the minimum requirement for battle axe lots in s 7.1 of DCP 49 and does not comply with the additional standard which specifically applies to subdivision of land in the 7(c) zone under s 8.1 of DCP 49 which requires a total lot area of not less than 650sqm. 28 The key question before the Court is whether, despite the non compliance, the proposal meets the objectives of the controls. In particular the objectives of s 8.1 which seek to: