Land and Environment Court of New South Wales CITATION : Combs R & Anor v Hornsby Shire Council [2007] NSWLEC 307 APPLICANTS: PARTIES : Robert Combs and Anor RESPONDENT: Hornsby Shire Council FILE NUMBER(S) : 11224 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Whether the deferred commencement condition requiring the registration of the plan of subdivision should be imposed. LEGISLATION CITED: Hornsby Shire Local Environmental Plan 1994, (HSLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97 DATES OF HEARING: 01/06/2007 EX TEMPORE JUDGMENT DATE : 1 June 2007 APPLICANT: Robert Combs, litigant in person SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr A Pickup, solicitor SOLICITORS: Storey and Gough JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 1 June 2007 11224 of 2006 - Robert Combs and Anor v Hornsby Shire Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Hornsby Shire Council (the council) to refuse a development application to erect a new part single-storey and part two-storey dwelling house on proposed Lot 202 at Lot 2, DP 213009, being No 4 Saracen Road, Beecroft. The appeal is against the imposition of a deferred commencement condition (Condition 1) of the development consent that required: 1. The subdivision creating Lot 202 Saracen Road is registered with the NSW Department of Lands and documentary evidence of the registration is forwarded to Council. 2 I have concluded that the Court may endorse the consent orders agreed between the parties. The land 3 The land is situated on the eastern side of Saracen Road and adjoins Devlin Creek at the rear. The land is also adjacent to the M2 motorway, which is located on the other side of Devlin's Creek. 4 The land prior to the subdivision approval had an area of 1,530m2 and has an average gradient of 14% to the rear boundary. Proposed Lot 201 has an area of 1,039m2 (551m2 excluding the right of carriageway). This lot contains an existing 2 storey brick and fibro dwelling. Proposed Lot 202 has an area of 534.9m2 (521m2 excluding right of carriageway). Upon this lot is proposed the new dwelling house. 5 The land is located south of Beecroft Village Shops and Railway Station and is approximately 1.5m travelling distance from the station. The locality is characterised by low-density residential development, Beecroft Park, bushland area and the M2 Motorway. Relevant planning controls Hornsby Shire Local Environmental Plan 1994, (HSLEP) 6 Under the provisions of the HSLEP the land is zoned Residential A (Low Density) and the proposal is permissible with consent. 7 Under clause 15 of the HSLEP development in the Residential A (Low Density) zone is not to exceed a floor space ratio of 0.4:1 and the proposal complies with this standard. 8 The proposal is also subject to the provisions of Hornsby Dwelling House Development Control Plan, (RDCP). The proposal and its history 9 Development application No 424/06 was lodged with the respondent council on 3 April 2006 to erect a part single-storey and part two-storey Federation style dwelling house and a freestanding tandem carport on a vacant allotment, which will be created once the earlier subdivision consent, has been registered. 10 The allotment was approved under a separate development application for a two-lot subdivision (DA 1485/01). 11 The proposed dwelling would include a lounge room, living/dining room, kitchen, study, laundry, bathroom, 2 bedrooms, 2 decks and a front veranda at ground floor level and a master bedroom, en suite and balcony within the ceiling space. 12 Much of the dwelling and carport would be supported on piers, straddling, where necessary, the existing emptied swimming pool, which will be retained and used to accommodate 2 x 4,5001t rainwater storage tanks. The rear of the property is subject to a 10m wide riparian zone. However, a small portion of the 10m riparian zone would be impacted upon by the proposed dwelling. 13 On 7 May 2003 the Court granted consent to Development Application No 1485/01 for the subdivision of one allotment into two at No 4 Saracen Road, Beecroft. That subdivision consent granted approval to the creation of an additional allotment known as proposed Lot 202. That subdivision has not yet been registered so that proposed Lot 202 has not been created. 14 The present development application, Development Application No 424/06 that seeks approval to erect a new dwelling house on proposed Lot 202 was granted deferred commencement consent on 11 January 2007. Notification 15 The application was notified to nearby owners and occupants in accordance with Council's Notification and Exhibition Development Control Plans and the council received one (1) submission. The council's decision 16 The application was determined under delegated authority on 10 May 2006 by way of refusal on the following reasons: 1. The proposal does not comply with the prescriptive measures and objectives of the height element of the Dwelling House DCP. The proposed two-storey dwelling does not comply with the prescriptive measures, which state that dwelling houses on battle-axe allotments should not exceed single storey in height. The proposed floor level is 1 m higher than required in Subdivision Consent No 1485/01 resulting excessive height and a design that is not sympathetic to the topography of the site. The proposal is not consistent with development in the local area and will have a detrimental impact on the privacy of adjacent residential development. 2. The proposed tandem carport does not comply with the prescriptive measures and objectives of the Dwelling House Development Control Plan as it does not allow vehicles to enter and leave the site in a forward direction and the access way exceeds 50m in length. A turning area is required to provide safe and efficient egress from the site for both residents and visitors due to the restricted area for vehicular manoeuvring in front of the tandem carport. The proposal does not comply with performance criteria and objectives of the Vehicle Access and Parking Element of the Dwelling House DCP. 3. The design of the proposed tandem carport is not sympathetic to the topographical constraints of the site and not consistent with the dominant character of the area and as a result would be detrimental to adjoining properties. 4. The proposed unbroken wall length of 14.1 m on the southern sidewall exceeds the prescriptive measures of the Design element of Council's Dwelling House DCP. The proposal is unsatisfactory as it is excessive in scale and would set an undesirable precedent for further inappropriate development in the area. 5. Compliance with Subdivision Consent No 1485/01, Condition No 36, which states: The swimming pool shall be removed. The pool shall be filled in with clean fill and compacted to not less than 97 per cent as determined by AS 1289.5.7.1 or AS 1298.5.4.1 modified compactive fill. 17 On 23 May 2006, the applicant made application under s82A of the Environmental Planning & Assessment Act 1979 for a re-determination of the council's decision to refuse the application. This s 82A Review Application was determined under delegated authority by the granting of deferred commencement consent subject to conditions on 11 January 2007. The hearing 18 The appeal was filed on 14 December 2006 against the deferred commencement condition. 19 At the hearing the Court received written evidence on behalf of the respondent council from Mr Mahony of the council in Exhibit 3. 20 On behalf of the applicant Ms Sneyd in Exhibit B provided written evidence. 21 Mr N McCarry, Senior Town Planner, Hornsby Shire Council, prepared the statement of basic facts dated 12 March 2007. The issues 22 On 12 April 2007 the council filed an amended statement of issues. 1. Whether the imposition of the deferred commencement consent Condition 1 of development consent No DA 424/06 granted by Hornsby Shire Council on 11 January is necessary under Section 80A of the Environmental Planning and Assessment Act 1979 as amended. Particulars (a) Condition 1 of the deferred commencement consent DA 424/06 requires as follows: 1. The subdivision creating Lot 202 Saracen Road is registered with the New South Wales Department of Lands and documentary evidence of the registration is forwarded to Council. (b) Condition 22 of development consent No DA 424/06 requires the construction of 'A rigid pavement driveway servicing the dwelling house must be constructed prior to the issue of an occupation certificate'. (c) The compliance with condition 22 prior to the issue of an occupation certificate is sufficient to satisfy the intent and requirement of the deferred commencement Condition 1. 23 The salient issue is whether the deferred commencement condition requiring the registration of the plan of subdivision should be imposed. The evidence and findings Deferred commencement condition 24 The parties have agreed to amend the deferred commencement condition by making it a general condition of consent in the following terms: 1. The subdivision creating Lot 202, Saracen Road, is to be registered with the NSW Department of Lands and documentary evidence of the registration is forwarded to Council before the issue of an occupation certificate for the dwelling on proposed Lot 202. 25 If the plan of subdivision were registered before occupation of the dwelling, as required by the amended condition the council is satisfied that the same result would flow as with the original deferred commencement condition. 26 The applicant understands that if registration did not occur before occupation there would be for a time two occupied dwellings on the land and the use would be characterised as a type of 'dual occupancy' for which consent has not been granted. 27 With the proposed amendments to Condition 1, the council is willing to vary the condition to require the registration of the subdivision of Lot 202 before occupation of the dwelling on that lot. 28 With those amendments to Condition 1, the Court grants approval by consent of the parties. 29 The Court notes that the council notified the sole objector of the hearing and the amendments to Condition 1 and that the objector did not wish to appear. The objector's concern for the structural stability for the stone retaining wall on the common boundary is noted and Mr Pickup for the council explained that this is a matter that is to be dealt with in the construction certificate. 30 For the above reasons, the appeal is upheld by consent. Conditions 31 The conditions are those in Exhibit 2 pp 90 to 99 that were imposed on the original consent with Condition 1 amended. Consent orders 32 The consent orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 424/06 lodged with the respondent council on 3 April 2006 to erect a part single-storey and part two-storey Federation style dwelling house and a freestanding tandem carport on proposed Lot 202 at Lot 2, DP 213009, being No 4 Saracen Road, Beecroft, is approved subject to Conditions 1 to 50 in Annexure A. 3. The exhibits except for Exhibits A, C, 2 and 4 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.