Land and Environment Court of New South Wales CITATION : Lewis v Lane Cove Council [2008] NSWLEC 1217 APPLICANT Jeff Lewis PARTIES : RESPONDENT Lane Cove Council FILE NUMBER(S) : 10905 of 2007 CORAM: Tuor C Development Application :- subdivision of land KEY ISSUES: whether allotments suitable for residential development due to size and constraints of overland flow path and retention of significant trees. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Lane Cove Local Environmental Plan 1987 CASES CITED: Parrott v Kiama Council (2004) NSWLEC 77 DATES OF HEARING: 16/05/2008 EX TEMPORE JUDGMENT DATE : 16 May 2008 APPLICANT Ms S Duggan, barrister instructed by Ms E Hillier of Gadens Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor of Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 16 May 2008 10905 of 2007 Jeff Lewis v Lane Cove Council JUDGMENT 1 This is an appeal against the refusal by Lane Cove Council (council) of a Development Application (D189/06) under the Environmental Planning and Assessment Act 1979 to subdivide 44 Carranya Road, Riverview (the site) into two allotments. 2 The Statement of Facts and Contentions includes three contentions. These can be summarised as whether: i. the non-compliance with the minimum allotment size and frontage is acceptable, and ii. the proposed allotments are suitable for the development of a dwelling without encroaching on the overland flow path or significant trees on the site. Site and its context 3 The site is rectangular in shape and located on a corner with a frontage of 27.43 m to Carranya Road and 41.5 m to Romani Avenue and a total site area of 1140 sqm. The site falls from north-east to south-west and contains a natural depression that acts as an overland flow path in some storm events. There is a drainage pipe and sewer main which transverses diagonally across the site from Carranya Road to Romani Avenue within the overland flow path. 4 The site is developed with a two storey dwelling located near the eastern boundary and towards the centre of the site. There are no buildings within the overland flow path. There are a number of canopy trees on the site. 5 Surrounding development is one and two storey detached houses on allotments with a predominant frontage width of 13.7 m. The proposal 6 The proposal seeks to subdivide the site into two lots: · Lot 1 has a 15.4 m frontage to Carranya Road with an area of 640 sqm. · Lot 2 has a 12.03 m frontage to Carranya Road with an area of 500 sqm. 7 The proposed subdivision will require the demolition of the existing dwelling. The applicant has provided indicative building envelopes for a new dwelling on each lot. Planning framework 8 The site is in zone 2(a1) (Residential A1 Zone) under Lane Cove Local Environmental Plan 1987 (LEP 1987). Dwelling houses are permissible with consent. 9 Clause 12 of LEP 1987 requires consent for subdivision. 10 Part VII of the Residential Zones Development Control Plan (Residential DCP) relates to residential subdivision. The objective provides: This part aims at allowing residential Torrens Title subdivision which retains, and where appropriate, improves the existing amenity and streetscape within residential zones. 11 The Residential DCP provides that the minimum allotment size is 550 sq m and the minimum frontage is 15 m. 12 The Stormwater Management Development Control Plan (Stormwater DCP) is also relevant. Clause 10.8 refers to subdivision of lots affected by overland flow. It provides: Proposed land subdivisions of lots affected by overland flow will not be approved unless the applicant can demonstrate to council that it is possible to provide a development on the newly-created lot that realises the full floor space ratio potential of the lot and provides suitable private open space while meeting the overland flow management criteria outlined in this document. 13 Clause 4.5 of the Stormwater DCP provides: Council will not approve the construction of any permanent structure or placement of fill over a piped drainage system or easement that will prevent or hamper construction, reconstruction, maintenance or access to the pipeline or easement. 14 The Policy for the Preservation of Significant Trees (Tree Policy) states: In determining a development application council will give priority to the preservation of significant trees. The development must aim to maximise the preservation of significant trees or tree stands and the application must include strategies for the maintenance of their long term health. 15 The site is affected by a covenant, which requires that any building to be erected on the site shall be set back 15 feet from the street and not more than one house shall be erected on the site. The covenant can be varied with the consent of council. LEP 1987 does not include provisions to suspend covenants applicable to this site. The evidence 16 The Court visited the site and heard evidence from Ms L Stewart, a nearby resident. Her main concern was that the site provided amenity to the area and that the subdivision and construction of two dwellings would be different to other houses in the street. She was concerned that the development would set a precedent for other lots to be subdivided and that the subdivision did not meet council's requirements for minimum allotment size. 17 For the council, expert evidence was provided by: · Mr M Terescenko, engineer, · Mr R Shankar, town planner, · Mr P Maish, arborist. 18 For the applicant, expert evidence was provided by: · Mr S Haddad, engineer · Mr A Darroch, town planner. 19 The engineers agreed that development on the sites could occur outside the overland flow path shown on drawing 15347-HO3 (Exhibit B). This agreement addressed the constraints only of the overland flow path and not other constraints such as trees. 20 Mr Maish stated that development on the site could occur provided there was no excavation or fill within 5 m of significant trees. Although he noted that his assessment was based on limited understanding of what was proposed and the setback for excavation was less than the recommendations in the Tree Assessment report by Allied Tree Consultancy submitted as part of the application. He stated that buildings could be closer than 5 metres with construction techniques such as pier and beam. 21 Mr Darroch prepared an indicative building envelope for each site which responded to the constraints of the overland flow path and significant trees. The envelopes placed the houses closer than 5 m to some of the trees to be retained but Mr Darroch indicated that this could be done without requiring excavation. 22 The indicative envelope for Lot 1 proposed to cantilever a second storey part of the dwelling over the drainage pipe and overland flow path at a level of 3m above the ground. Mr Darroch stated that the envelope was not the outer limit of where development could occur on the site but was done to demonstrate that reasonable development could occur. He considered it to be inappropriate to incorporate the envelope into the consent as alternative solutions could result at the development application stage for a dwelling. 23 Mr Darroch held the same opinion in relation to the definition of the area of the overland flow path (Exhibit B) and the required distance of excavation and fill from the trees. He considered that other options may be available and this should be left to the dwelling application. The applicant has nevertheless agreed that these requirements can be incorporated as conditions of consent. 24 Mr Terescenko and Mr Haddad disagreed as to whether the 3 m height of the cantilevered second storey provided sufficient clearance to enable works or replacement of the pipe to occur. These experts agreed that the normal construction technique would require a minimum clearance of about 5.25 metres. However, there are other techniques that would require less clearance but would be more costly to council. 25 Ms Duggan, for the applicant, submits that there is no formal easement registered on the land and as such council's rights are constrained. Nonetheless the applicant has agreed to a condition requiring a 2.5 metre wide easement to be registered. 26 In relation to the trees, the only issue in dispute was whether Tree 5 should be retained. This tree is centrally located at the front of Lot 2 in the situation of the proposed double carport. Mr Darroch stated that there is insufficient space to provide a double carport at either side of the tree on the street frontage. He referred to his understanding that other council officers had recognised this constraint and agreed to the removal of Tree 5. Mr Maish held the opinion that the tree satisfied the criteria for significance in the Tree Policy as it is a remnant tree, has aesthetic appeal as makes a contribution to the landscape character of the locality. In his opinion the tree was significant and should be retained. Mr Darroch considered that even if the tree was significant it could not be retained and achieve a reasonable level of development on Lot 2. 27 Mr Darroch noted that the dwelling on Lot 1 provided 260 sq m of floor space and therefore was less than the 320 sq m permissible under the 0.5:1 floor space ratio control (FSR) in the Residential DCP. Nonetheless he considered the amount of accommodation proposed would be reasonable for a dwelling in this area. He also stated that the envelope could be increased to provide extra area without encroaching on the trees or the overland flow path. While he acknowledged that there were no allotments less than 550 square metres in either Carranya Road or Romani Avenue, he did not consider that the smaller lot would be out of character with the locality or the streetscape. He offered no opinion as to why the site was larger than other allotments in the area, nor did he consider that the building envelope on Lot 1, with its cantilever and stepping form would be uncharacteristic of the streetscape. Mr Darroch recognised that it would be different to other houses and that there were no other similar houses in the area but in his opinion this did not make it unacceptable. Findings 28 In Parrott v Kiama Council (2004) NSWLEC 77, Roseth SC provided the following planning principle for subdivisions: When should a subdivision application include information on the buildings to be built on the resulting allotments? It is normal practice in Australia to subdivide land without constraints on the building that can later be built. While this practice is appropriate in most cases it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual or environmentally sensitive or where significant impacts on neighbours are likely and needs careful design to minimise them. In this case the proposed battle-axe allotment is not small although it is much smaller than its neighbours. It is environmentally sensitive because of its extreme steepness. It is in a location where the adjoining allotments all have rear yards and thus it breaks the established building line. Any future building on it will be closer to the Stafford Street properties than other houses are to their southern neighbours. The likelihood of adverse impact is high. This is not to say that an acceptable dwelling cannot be designed on the allotment, only that it would require a higher than usual level of design skill. A design of the future house, at least the outline design, is not a matter that is appropriately left to later. 29 Ms Duggan submits that this principle is not relevant in this case as the site is not small, not environmentally sensitive and no significant impacts are likely. 30 I do not accept this submission. The overland flow path and the trees on the site are constraints that render the site environmentally sensitive. 31 Mr Darroch agreed that these matters were constraints to development on the land but considered that even with these constraints the sites were suitable for reasonable residential development. In his opinion the building envelopes submitted with the application demonstrated that reasonable development of the sites could be achieved. He stated that the envelopes did not show the maximum level of development and that there are other options. 32 I do not accept that the building envelopes demonstrate that reasonable residential development can occur, particularly on Lot 1. About half of Lot 1 is constrained by the overland flow path and other parts of the site are constrained by the trees which are recommended to be retained by the Tree Assessment which accompanied the application and by council officers. While there may be opportunity to increase the envelope or for alternative schemes, this opportunity is limited. 33 The building envelope for Lot 1 proposes a cantilevered section which is set back about 1.5 metres from Romani Avenue and would be visible from both this street and Carranya Road. This element and the stepping of the building is different and uncharacteristic of development in the locality. I do not accept that it is appropriate to base a decision on whether a site is suitable for subdivision on a building envelope, which requires an uncharacteristic development to occur on the site at a later stage. It is also not good planning to construct a building over a drainage pipe, which while technically feasible, will potentially place constraints on the maintenance and removal of the drainage pipe. 34 The proposed envelope on Lot 1 does not achieve the FSR of 0.5:1 permissible on the site. Mr Darroch states that the envelope provides a reasonable level of accommodation or, alternatively, that additional floor space could be achieved by extending the envelope. It is difficult to see how the FSR of 0.5:1 can occur without the cantilevered section or encroaching on the over land flow path or the trees while still providing a useable floor plate. 35 Clause 10.8 of the Stormwater DCP requires that it be demonstrated that the newly-created lot can realise the full floor space potential of the lot. This is a practical and sensible requirement, which the proposal does not meet. I consider that a purchaser of the land would have a realistic expectation that the permissible FSR could be achieved. This expectation is likely to place pressure to encroach on the overland flow path or the removal of trees at a later stage. 36 While the building envelope for Lot 2 provides a reasonable level and arrangement of accommodation, the size of the allotment and the minimum frontage have placed constraints on the retention of Tree 5. This tree is identified in the Tree Assessment as warranting retention. I accept Mr Seton's submission, for the council, that the report by Ms Stack, council's landscape architect, was based on the assumption of this tree being retained. It is unclear that any other council officer has agreed to its removal other than that removal may be possible due to the proposed location of the carport. 37 The proposed carport on Lot 2 is located in the overland flow path and requires the removal of Tree 5. This demonstrates the constraints that the proposal places on the site to achieve an expected level of development. While this may be reasonable on an existing or complying allotment it is considerably more difficult to justify on an allotment that does not meet the minimum standards of allotment size and frontage within the Residential DCP. 38 I note also that the building envelope on Lot 2 is within 3m of Tree 11 and Tree 22 and 2m of Tree 10. While it may be possible for the dwelling to be constructed without excavation near these trees it is not optimal to have buildings so close to canopy trees. Most council Tree Preservation Orders permit trees within 4m of a building to be removed without consent, recognising that there is sometimes an inherent conflict between large trees and buildings due to factors such as overhanging branches and dropping limbs. While the proposed building envelopes on Lots 1 and 2 may not result in adverse affects on the health and vitality of these trees they do not provide optimal space for trees and some trees are closer than the Tree Protection Zone recommended in the Tree Assessment. 39 I do not consider that it has been demonstrated that this proposed subdivision will meet the objective for residential subdivision in the Residential DCP to maintain amenity and streetscape within residential zones. 40 I acknowledge that numerically the sites can be subdivided to meet the minimum allotment size but this cannot be achieved because of specific site constraints associated with the overland flow path and the retention of trees. The Residential DCP requirements are a minimum standard and larger areas may be necessary to meet the constraints of a particular site. This appears to have been recognised in the original subdivision of the land where this site is larger than the others, probably because of its location within the overland flow path and the need for drainage lines in the lowest part of the area. 41 As stated in Parrott, while an acceptable dwelling may be designed for these allotments due to the constraints on the site I am not satisfied that this has been demonstrated or that this is a matter that is appropriately left to a later stage. Orders 42 The orders of the Court are therefore: 1. The appeal is dismissed. 2. The development application (189/06) to subdivide 44 Carranya Road, Riverview into two allotments is dismissed. 3. The exhibits, except exhibit 1, are 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. 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