Smith v Yass Valley Council [2010] NSWLEC 1157

Land and Environment Court of New South Wales

CITATION : Smith v Yass Valley Council [2010] NSWLEC 1157

APPLICANT Stephen John Smith PARTIES : RESPONDENT Yass Valley Council

FILE NUMBER(S) : 10024 of 2010

CORAM: Dixon C

KEY ISSUES: APPEAL - SUBDIVISION :- Consent Orders

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Yass Local Environmental Plan 1987 Yass Shire Council Community Consultation Development Control Plan Multi Unit Residential Development Control Plan

DATES OF HEARING: 19 April 2010

DATE OF JUDGMENT: 28 June 2010

APPLICANT Mr S J Smith (litigant in person)

LEGAL REPRESENTATIVES: RESPONDENT Mr A Bradbury (solicitor) SOLICITOR Williams Love Nicol Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT Court OF NEW SOUTH WALES

Dixon C

28 June 2010

10024 of 2010 Stephen John Smith v Yass Valley Council

JUDGMENT 1 The applicant seeks development consent to subdivide land at Lot 8 DP 1095474 12 Rossi Street, Yass into two allotments and to vary Council's Road Standards Policy to enable the creation of a right of way to access the site. 2 The Council consents to this application and the parties request the Court make consent orders, which grant development consent subject to conditions. 3 In determining whether to make the proposed consent orders, the Court must consider the relevant matters in section 79C of the Environmental Planning and Assessment Act 1979 (the Act) including any objection made to the application. For that reason, at the request of the parties, the hearing on 19 April 2009 was conducted onsite so that the Court could view the site and surrounding area and hear any oral evidence from the objectors attending the hearing. 4 Following a consideration of the evidence, including the oral and written objections to the application, and the relevant matters under section 79C of the Act, I have decided to make the consent orders and approve this subdivision subject to agreed conditions. The reasons for my decision are set out below. Background 5 At the outset, I will deal with the two preliminary matters raised onsite by the residents: late notice of the consent orders hearing, and council's decision not to defend the appeal and enter into consent orders to approve the application subject to conditions. 6 With respect to how the matter came to be listed as consent orders hearing, the general manger of the council, Mr Rowe, offered explanation. He said, that, although the Councillors in December 2009 had refused the application, council had, after consideration of recent legal advice about the merits of defending this appeal, resolved to enter into consent orders to approve the application subject to conditions. As a consequence of that decision the only remaining issues for the appeal were the objections raised by the residents. Therefore, at the request of the parties, the Court listed the matter onsite in order to give any objector an opportunity to orally address the Court about any matter raised in their written objections. 7 The matter was conducted onsite with the co-operation of the parties and the resident objectors and council's solicitor took notes of the evidence. Those notes were forwarded to the Court the next day. I have read the notes, which generally accord with my record and recollection of the evidence taken at the hearing. 8 With respect to the issue of notification, I accept the evidence of the council that its development control plan for community consultation, Yass Shire Council Community Consultation (DCP) applies to this application and the application was notified in accordance with the provisions of the DCP. As a consequence of that notification Council received seven submissions in respect to the application and those objections are included in council's bundle of documents (exhibit 1). Furthermore, in accordance with paragraph 36 of the Court's Practice Note for Class 1 Appeals, each of the objectors has been informed of: (a) the content of the proposed orders (including the proposed conditions of consent); (b) the date of the hearing by the Court to consider making the proposed consent orders; and (c) the opportunity for any such person to be heard. 9 A copy of the letter sent to each of the objectors is contained at pages 78 to 96 of the bundle of documents (exhibit 1). 10 Despite compliance with the Court's Practice Note in respect of notification, at the onsite hearing I arranged for a copy of the consent orders and conditions to be available during the hearing and short adjournment for inspection by any person at the hearing. 11 I have read the written objections contained in council's bundle of documents that were expanded upon by the oral evidence of some residents and/or their representatives during the hearing. Based on the above, I am satisfied that the notification to objectors in respect of this application has been reasonable and in accordance with the council's policy and the Court's Practice Note. Furthermore, I am satisfied that the residents attending the hearing were afforded a fair and reasonable opportunity to read and understand the proposed consent orders before explaining to me their concerns and objections to this application. The proposal 12 The statement of facts and contentions filed by the parties on 14 April 2010 (exhibit E) sets out the relevant background to the development of this site and the issues raised by this application. 13 The proposed development consists of the subdivision of Lot 8 into two allotments of land 700 m2 and 817 m2 in respective size. 14 Access to proposed Lot I will be via a new Right of Carriage Way to be created via a battle-axe handle on proposed Lot 2. Access to proposed Lot 2 will be directly off Rossi Street. The site 15 The site is known as 12 Rossi Street, Yass. The land comprises Lot 8 in DP 1095474 and is 1517 m2 in area. The site is located in Rossi Street approximately 80m from the intersection of Pritchett Street and Rossi Street. The site is rectangular in shape and an existing dwelling house with a shed/garage is located on proposed Lot 1. 16 The site falls from the southeast to northwest with existing drainage being directed toward Council's stormwater system. 17 The site is located in an area identified as bush fire prone under the Council's Bushfire Prone Land Mapping prepared by the NSW Rural Fire Service. 18 The site is located in an area that is surrounded by residential development. The adjoining properties are residential allotments and are of the following sizes: (a) the allotments opposite the site have areas ranging between 631 m 2 and 3,587m 2 ; (b) the neighbouring allotments to the east of the site enjoy areas ranging between 522 m 2 and 1,546 m 2 ; (c) the adjoining allotments to the west of the site have areas that vary between 702 m 2 and 1,118 m 2 ; (d) the allotment that abuts to the southern boundary of the site has an area of 6,269 m 2 . The statutory controls 19 The land is within Zone No. 2(a) Residential under the under Yass Local Environmental Plan 1987 (YLEP 1987). 20 The following provisions of the YLEP 1987 are relevant: (a) Clause 2 - Aims, objectives etc; (b) Clause 9 - Zone objectives and development control table; (c) Clause 10 -General (Subdivision); and (d) Clause 22 - Provision of services. 21 The Yass Shire Council Community Consultation Development Control Plan (DCP) applies to land within Zone No. 2(a) Residential under the under YLEP 1987. 22 The following provisions of the DCP are relevant: (a) Community consultation provisions; (b) Notification provisions; and (c) Inspection of development applications provisions. 23 The Road Standards Policy RD-POL-9 (Road Policy) applies to land within Zone No. 2(a) Residential under the under YLEP 1987. 24 The following provisions of the Road Policy are relevant: (a) Clause 1 - Right of Carriageway Access; and (b) Clause 2 - Battle-Axe Handle Access. 25 The Multi Unit Residential Development Control Plan (Unit DCP) applies to land within Zone No. 2(a) Residential under the under YLEP 1987. 26 Clause 6 (Vehicular Access) of the Unit DCP is relevant to the development. 27 The Minimum Lot Size Policy DA-POL-15 applies to land within Zone No. 2(a) Residential under the under YLEP 1987. 28 Clause 3 (minimum lot sizes) of the Minimum Lot Size Policy is relevant to the development. Actions of the council 29 The development application (DA No. 5.2009.303.1) was lodged by the Applicant with the Council on 16 October 2009. 30 Notice of the development application was given to adjoining owners on 28 October 2009 and invited comments up to 18 November 2009. 31 Seven submissions were received by the council. Issues raised by the objectors included the following: (a) the proposed development would set a precedent for subdivision of land and that proposed development would create a housing density, which would be against the character and best interests of the neighbourhood. (b) a house being built at the rear of 12 Rossi Street would devalue other properties. (c) there will be a loss of privacy of the back yard of adjoining allotments. (d) the plan of subdivision does not include an accurate representation of the existing house on Lot 1: specifically it does not indicate the distance between the existing house and boundary of the driveway. Further, concerns have been raised as to the safety of the proposed driveway as the only pedestrian route is also the main vehicular route. (e) concerns about the adequacy of the proposed right of carriageway as the sole means of access to proposed lot 2.The development application (DA No 5.2009.303.1) seeks consent to subdivide the site into 2 residential lots. Lot 1 will have an allotment size of 700m2 and Lot 2 (at the rear of the site) will have allotment size of 817m2. Council's Section 79C assessment 32 Before deciding to enter into consent orders, council submits that it carried out a detailed merit assessment of the application under section 79C of the Act and refers me to the summary of that assessment in the report to council's meeting held on 16 December 2009 prepared by Muzaffar Rubbani Director of Planning and Environmental Services Report, (79C assessment report), (16 December 2009) at 9 – 51 of council's bundle of documents (exhibit 1). I have read and considered council's (79C assessment report), which recommends approval of this application subject to conditions. The report deals with the following matters. Yass Local Environmental Plan 1987 33 The site is within Zone 2(a) Residential under the Yass Local Environmental Plan 1987 (YLEP) and in council's assessment this subdivision is permissible because it satisfies clause 9(3) of the YLEP as it is consistent with the objective of the zone namely; " to set aside certain land for housing within acceptable living areas of the Shire of Yass." (79C assessment report) at 13. 34 Furthermore, according to council's assessment the application complies with clause 3.1.1(a) of the Minimum Lot Size-Residential and DA-POL015 Village Zone Policy (9 September 2009) because the lots created are above the minimum allotment size of 700m2. 35 It is council's assessment that this application has made adequate arrangements for the provision of vehicle access, electricity, water, landscaping and sewerage/drainage infrastructure to the proposed allotments." (79C assessment report) at 13 and therefore, clause 22 of the YLEP is satisfied it provides: "The council shall not consent to the carrying out of any development on any allotment of land unless it is satisfied that adequate arrangements have been made for the provision of vehicle access, electricity, water, landscaping, sewerage and drainage facilities to the allotment." 36 The application was referred to the NSW Rural Fire Service and they raised no objection to the approval of the application and granted a Bushfire Safety Authority subject to conditions. Several conditions are included in the draft consent orders to address bushfire concerns. These are conditions 9 and 10 in Part A and conditions 21, 22 and 23 in Part E. 37 The proposed development does not comply with the Council's Road Standards Policy RD-POL-9 (copy at pages 150 to 156 of bundle of documents). That policy requires a right of way providing access to 2 properties to have a dedicated width of 8.5 metres and a pavement width of 4.5 metres. The proposed development will have a right of carriageway with a dedicated width of 3.8 metres. A detailed consideration of the non-compliance of the development application with that policy is contained in the Section 79C Report at page 16 of the bundle of documents. The non-compliance is not considered sufficient to warrant refusal of the application. Objector Evidence 38 I have considered carefully the written objections against this application and the oral evidence of the residents or their representatives' who addressed me onsite. As described, I tried to explain at the hearing council has agreed to the subdivision subject to conditions after a section 79C merit assessment including a consideration of the resident objections. The Court has no planning evidence, which supports a refusal of this application and has in fact been invited by council to approve this two lot subdivision subject to conditions. The planning evidence is that the development is permissible and complies with council's controls. The variation to the road policy concerning the width of the driveway is justified and acceptable according to the planning evidence before the Court. 39 Discussion about planning strategies independent of the relevant controls is academic for the purposes of this application. The council has recently adopted planning controls that allow a subdivision pattern consistent with this application. The Court while able to appreciate the objectors' concerns that such controls do not reflect the community view, can no nothing more than apply the relevant law. Changing that law is a matter outside the reach of the Court's merit appeal jurisdiction. 40 While I appreciate, that the residents who addressed me do not want their local community and its existing subdivision pattern to change and that they believe that an intensification of land use through subdivision of this size will result in a loss of their amenity and a fundamental adverse change to their community I have no relevant planning evidence to rely upon to refuse this application on the basis of its merits. 41 Based on the above, I accept council's merit assessment including a consideration of the objectors' evidence that the proposed development complies with the relevant provisions of the LEP and is considered to be in keeping with the surrounding residential development. The site is suitable for the proposed development and is capable of being developed in the manner proposed without causing an unreasonable impact on adjoining properties. 42 The objectors' concern about their amenity in the event of further development on each lot is premature and not a relevant consideration in this appeal because this proposal complies with council's minimum lot size control and based on the evidence on a merit assessment is acceptable. Any future development of each lot requiring consent will be notified and subject to an assessment under the relevant planning controls at that time including an assessment of any amenity impacts on the neighbours. 43 The applicant and respondent have reached agreement on consent orders providing for the grant of development consent subject to conditions and following a consideration of the merit assessment under section 79C and the written and oral objections to this application. I find no reason not to make the consent orders agreed by the parties. 44 The Court makes the following orders: 1. The appeal is upheld. 2. Development consent for the subdivision of Lot 8 DP 1095474(known as 12 Rossi Street, Yass) into 2 allotments, generally in accordance with the plan forming part of Development Application 5.2009.303.1 is granted subject to conditions set out in Annexure A. 3. The Exhibits except A, are returned.