Platino Properties Pty Limited v Lane Cove Council [2008] NSWLEC 288

Land and Environment Court of New South Wales

CITATION : Platino Properties Pty Limited v Lane Cove Council [2008] NSWLEC 288

APPLICANT Platino Properties Pty Limited PARTIES : RESPONDENT Lane Cove Council

FILE NUMBER(S) : 10618 of 2008

CORAM: Preston CJ

KEY ISSUES: Development Application :- subdivision and erection of a single dwelling house - dwelling house currently permissible but will become prohibited in proposed high density residential zone under draft local environmental plan - certainty and imminence of draft local environmental plan - inconsistency of proposed development with existing and likely future character of locality

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 65, s 68, s 79C, s 97

DATES OF HEARING: 1 and 4 September 2008

DATE OF JUDGMENT: 9 October 2008

APPLICANT Mr J Hannaford (solicitor) SOLICITORS Hannaford Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton (solicitor) SOLICITORS Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

9 OCTOBER 2008

10618 OF 2008

PLATINO PROPERTIES PTY LIMITED V LANE COVE COUNCIL

JUDGMENT

1 HIS HONOUR: Lane Cove Council has, in consultation with the NSW Department of Planning, developed a new comprehensive draft local environmental plan for the municipality, draft Lane Cove Local Environmental Plan 2008 ("draft LCLEP 2008"). The review process that culminated in the draft LCLEP 2008 commenced in 2000 and has complied with the various stages of NSW planning reforms since 2001. It conforms to the State government's Metropolitan Strategy and the Draft Inner North Subregional Strategy residential (2,700 dwellings for 15 years) and employment (6,500 jobs for 25 years) targets as agreed upon with the Department of Planning. The Draft LCLEP 2008 is Stage 1, being for the first 15 years, and represents 70% of the total 25 year (to 2031) residential target of 3,900 dwellings in the Metropolitan Strategy. 2 To achieve the residential target of 2,700 dwellings over 15 years, the draft LCLEP 2008 identifies a number of areas that, over this period, are to be developed as residential flats and townhouses as well as infill flats and shop top housing. These areas are zoned R4 High Density Residential. They vary in size and are located throughout the municipality, predominantly along main traffic arteries where public transport is available. One of these proposed high density residential areas is situated on the east side of Burns Bay Road, Lane Cove, in the vicinity of Penrose Street. 3 Platino Properties Pty Limited lodged a development application for the subdivision of land in Strata Plan 19076 with a street address of 280 Burns Bay Road (also known as 40A Cope Street), Lane Cove into two lots and the construction of a detached dwelling house on the vacant subdivided lot. The proposed development site is part of one of the areas to be zoned R4 High Density Residential under the draft LCLEP 2008. Lane Cove Council refused the development application. 4 Platino Properties has appealed under s 97 of the Environmental Planning and Assessment Act 1979 to this Court. The central issue on the appeal is the consistency of the proposed low density residential development with the existing medium density residential character of the site and surrounding lands and with the future high density residential character planned for the area under draft LCLEP 2008. 5 For reasons I will provide below, I have decided that the proposed development is inconsistent with the existing and future planning for, and character of the area and is likely to impede the orderly and economic development of the site and adjoining lands for high density residential uses. Accordingly, the development application should be refused and the appeal dismissed. The proposed development 6 The site is a large hatchet shaped lot with a frontage of 11.73 m and a total area of 2,571 m2. It is developed with two, three-storey residential flat buildings. The main body of the lot, the hatchet blade, that is proposed to become the eastern lot, has an area of 1,802 square metres (about 55 m by 33 m). It will contain the residential flat buildings that will continue to utilise their existing access off Cope Street via Caroline Chisholm Lane. 7 The proposed second or western lot, the handle of the hatchet, will have an area of 772 m2 (11.73 m x 66.75 m). It is vacant but for a number of substantial trees and a sandstone wall and gateway. This stone wall is a listed heritage item and extends from the western lot's frontage along the southern boundary of the appeal site. There is an existing driveway that extends from the site's Burns Bay Road frontage through the gateway and across its north-west corner, providing access to the neighbouring (to the north) townhouse development at 278 Burns Bay Road. The proposed western lot is to be developed with a single storey, three-bedroom dwelling house with a detached two-car garage that is to be set back about 9.5 m from the Burns Bay Road frontage. Vehicular access to the garage will utilise (with some modifications) the existing driveway off Burns Bay Road. Neighbouring development 8 The neighbouring townhouse development contains four, two-storey dwellings that have private courtyards on the north side and, on their south side facing the western lot, have garages and entrances at ground level and bedrooms with small balconies at first-floor level. Further to the north and to the north-east, beyond these townhouses, is the two-storey Caroline Chisholm retirement village at 276 and 280 Burns Bay Road. To the east is the two, three storey residential flat buildings on the part of the site that would become the proposed eastern lot. To the south of the site at 284 Burns Bay Road is a large site developed with a single storey residential style building that is used for commercial purposes. 9 Hence, the neighbouring development in the block bounded by Burns Bay Road, Cope Street and Caroline Chisholm Lane, is of a medium density character. Planning controls 10 The site is subject to the provisions of the Lane Cove Local Environmental Plan 1987 ("LCLEP 1987"). The general aims of the LCLEP 1987 include, in cl 2(1)(a): "...to preserve and where appropriate improve the existing character and environmental quality of the land to which it applies in accordance with the indicated expectations of the community". 11 The particular aims of LCLEP 1987 in relation to housing, are in cl 2(2)(a): "(i) to maintain and where appropriate improve the existing amenity and environmental character of residential zones, (ii) to provide additional medium density housing in limited quantities within certain residential zones to assist in the maintenance of the present population of the Municipality, and (iii) to permit new residential development only where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development". 12 The particular aims of LCLEP 1987 in relation to conservation include, in cl 2(2)(d)(ii): "to control all new buildings, extensions and alterations to ensure their compatibility with existing environmental character". 13 Under the LCLEP 1987, the proposed western lot (where the dwelling house is to be constructed) is zoned Residential 2(b) and the proposed eastern lot (that contains the existing residential flat buildings) is zoned Residential 2(c). Zones 2(b) and 2(c) are two of the five residential zones under LCLEP 1987. They are at the upper end of an increasing scale of residential density, ranging from Zone 2(a2) (detached single family dwelling areas); Zone 2(a1) (detached single family dwelling area with limited single storey villa home development); Zone 2(b1) (townhouses or villa home development and other forms of buildings of a lesser scale than townhouse development); Zone 2(b) (medium density residential development with townhouse or villa home development); and 2(c) (high level of residential development with villa homes, townhouses and residential flat buildings). 14 Clause 9(3) of LCLEP 1987 requires that: "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." 15 The objectives of the Residential 2(b) zone: "are to provide for medium density residential development and to retain the existing residential amenity and streetscape. Townhouse or villa home development which will maintain the existing street character and will be sympathetic to the neighbourhood in relation to setback, building mass and style, views, dwelling colour, landscaping, the provision of adequate off-street car parking and minimum overshadowing of neighbouring development will be permitted within the zone". 16 The objective of the Residential 2(c) zone: "is to retain the existing high level of residential development. Development for the purposes of villa homes, townhouses and residential flat buildings which is sympathetic to the neighbourhood in relation to setbacks, building mass, views, dwelling colour, off-street parking, landscaping and overshadowing of neighbouring development will be permitted within the zone". 17 Dwelling houses are permissible with consent in both the 2(b) and the 2(c) residential zones. 18 Another relevant consideration under s79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 is the above-mentioned draft LCLEP 2008 under which the site is included in the R4 High Density Residential zone. The objectives of the R4 High Density Residential zone include "to provide for the housing needs of the community within a high density residential environment", "to provide a variety of housing types within a high density residential environment" and "to avoid the isolation of sites resulting from site amalgamation". Under cl 2.3(2), the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 19 Development permissible with consent in the R4 High Density Residential zone includes high and medium density residential development types but dwelling houses are prohibited. The draft LCLEP 2008, by reference to the Floor Space Ratio Map, allows development at a floor space ratio of up to 1.7:1. By reference to the Height of Buildings Map, the proposed western lot can be developed to a maximum height of 18 metres (about 6 storeys) and land to the south to a maximum height of 21 metres (about 7 storeys).