Land and Environment Court of New South Wales CITATION : Thomas v Shoalhaven City Council [2010] NSWLEC 1264 APPLICANT Helen Thomas PARTIES : RESPONDENT Shoalhaven City Council FILE NUMBER(S) : 10388 of 2010 CORAM: Morris C KEY ISSUES: DEVELOPMENT APPLICATION - SUBDIVISION :- Character, Precedent. Shoalhaven Local Environmental Plan, 1985 LEGISLATION CITED: State Environmental Planning Policy No 71 – Coastal Protection Jervis Bay Regional Environmental Plan 1996 CASES CITED: Parrott v Kiama Municipal Council [2004] NSWLEC 77 TEXTS CITED: Building Code of Australia DATES OF HEARING: 17 September 2010 DATE OF JUDGMENT: 24 September 2010 APPLICANT Mr P Moggach SOLICITOR RMB Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A McKelvey SOLICITOR Sparke Helmore Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Morris C 24 September 2010 10388 of 2010 Helen Thomas v Shoalhaven City Council JUDGMENT 1 Commissioner: This is an appeal against the refusal by Shoalhaven City Council of a development application, which proposed the subdivision of an existing lot at number 20 Bayview Ave, Hyams Beach into two lots. 2 Apart from providing the necessary services to each lot and minor roadworks adjacent to the site, no other works were proposed as part of the application. 3 The council refused consent, as it maintains the proposal is not consistent with the objectives of its development control plan and that the subdivision will provide an undesirable precedent for similar inappropriate development and is therefore not in the public interest. The site and its context 4 Hyams Beach is a small holiday village that comprises 239 lots, most of which contain single dwelling houses however there are a number of holiday flats and a new, medium density development at its southern end. Many of the properties within the village have extensive views over Hyams Beach and Jervis Bay as the land rises from the water to the west towards the Jervis Bay National Park. The national park forms a treed backdrop to the village. 5 Number 20 Bayview Ave (the site) comprises Lot 16 in DP27401 and is a rectangle shaped allotment that has dual frontage to the south, to Bayview Avenue and to the north, to Moonah Road. An elevated dwelling house is erected to the front of the site and the rear yard comprises a grassed sloped area with perimeter tree planting along the western and northern boundaries. 6 Moonah Road, is not formed at the lot's frontage to the carriageway however, the application proposes the construction of gravel roadway within the road reserve. The rear portion of the lot is located at the intersection of Moonah Road with Illowra Lane however, Illowra Lane is not constructed and is in effect, a "paper road" in this location due to the steep topography. 7 The site has considerable fall from the north-west to south-east with a level difference of approximately 14 m across the site. A pedestrian pathway adjoins the site's eastern boundary and links Moonah Road to Bayview Avenue. The proposal. 8 It is proposed to subdivide lot 16 into two equal lots. Proposed lot 161 would have a frontage of 15.24 m to Bayview Avenue, depth of 29.92m and a site area of 455.8 square metres. This lot would contain the existing dwelling house. Proposed lot 162 would have a frontage of 15.24m to Moonah Road, depth of 29.92m and area of 455.8 square metres. 9 A 1m wide drainage easement is proposed along the eastern boundary of lot 161 to facilitate stormwater disposal from lot 162 to Bayview Avenue. Roadwork within Moonah Road, associated with the development, is limited to the provision of gravel formation access to the lot frontage. The application before the court does not include construction of the driveway access to lot 162 as this is to be the subject of a future application for a dwelling on the land, should consent be granted to this application. The planning controls. 10 The site is zoned 2(a1) (Residential "A1" Zone) under the Shoalhaven Local Environmental Plan, 1985 (SLEP). The plan does not contain any development standards relevant to subdivision of land however clause 10 does require development consent to be obtained prior to subdivision occurring. 11 Development Control Plan 100 - Subdivision Code (DCP100) also applies to the application and is a performance-based plan and does not contain any minimum controls for subdivision. 12 State Environmental Planning Policy No 71 – Coastal Protection (SEPP) and Jervis Bay Regional Environmental Plan 1996 (REP) also apply to the land. The effect of those plans is to add further matters for consideration in the determination of a development application. The Local Environmental Plan. 13 Clause 2 of the SLEP contains a comprehensive series of objectives, of which the following are relevant to the application:- (a) to provide for a variety of residential life styles, (f) to ensure that development and expansion of coastal villages are sympathetic to the coastal environment, 14 Clause 3 of the SLEP establishes strategies by which the aims and objectives of the plan are to be achieved. In this instance, the following sub-clause is relevant: (b) establishing conditions under which subdivision, dwelling-houses and other types of development may be carried out in specific zones. 15 Clause 9 of the SLEP requires the council, and in this case, the Court, to take into account the aims and objectives of the plan and the objectives of the zone in which the development is proposed when determining a development application. The objectives of the Residential "A1" zone are to provide an environment primarily for detached housing and to ensure that the range of other development permitted in a residential area is compatible with the residential environment. The State Environmental Planning Policy 16 Section 2 of the SEPP contains the aims of the policy of which (k) is relevant and aims; to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area. 17 Section 8 lists, in the matters for consideration under the plan; the aims of that policy, the suitability of the development given its type, location and design and its relationship with the surrounding area. 18 Therefore, these matters must also be considered in the determination of this application. The Regional Environmental Plan. 19 Clause 8 of the REP incorporates definitions and the development would be a proposal under this plan. Pursuant to clause 9 of the REP a proponent must show why a proposal should proceed using the following steps: (a) described the natural and cultural values of the site affected by the proposal, (b) evaluate the significance of these values within the Jervis Bay context, (c) assess the impact of the proposal on those values identified, both within the site and the Jervis Bay context, (d) provide details on how the immediate and cumulative impacts of the proposal will be managed, to achieve the aims of this plan. The Development Control Plan. 20 The purpose of DCP 100 is detailed in section 1.3 and is to encourage appropriate development, which provides quality subdivision design, optimising land use and minimising net infrastructure costs being consistent with the objective of the Environmental Planning and Assessment Act, 1979. These important objectives must be balanced against maintaining or improving amenity. 21 The aims of the DCP are: · to encourage high-quality urban design and residential amenity · to set appropriate environmental criteria for subdivision development · to provide a comprehensive design approach for residential, rural, industrial and commercial subdivision · to provide a user-friendly document with flexible performance-based criteria to guide development; and · to provide for ecologically sustainable subdivision of the land. 22 The DCP does not contain prescriptive provisions, but rather has objectives and performance criteria for each element. Acceptable solutions are included, providing an example of how the performance criteria can be achieved. I would compare the "Acceptable Solutions" to the "Deemed to Satisfy" provisions of the Building Code of Australia in their application, Objectives describe the main aims of each design element and desired outcomes. Performance criteria cover a range of matters that need to be addressed in order to achieve the desired objective. Acceptable solutions are provided as example of what council will accept for achievement of the relevant performance criteria. Alternatives may be proposed, if it can be demonstrated that the alternative will satisfy the design objectives and criteria. It is important to note that in step 6 of clause 1.10, the following advice is given: whilst it is not essential to study the acceptable solutions, these do contain useful examples of how the objectives and performance criteria may be satisfied. 23 Element RE14 - Allotment Layout is relevant to this application. This section has four objectives, all of which are relevant to this application. They are: O1. To provide a range and mix of lot sizes suit a variety of dwellings and household types, with areas and dimensions to meet user requirements. O2. To provide lots that are oriented where practicable to enable the application of energy conservation principles. O3. To provide lots of sufficient size to protect environmental features and take into account site constraints. O4. To provide for smaller lots, in locations adjacent to neighbourhood centres, public transport stops and adjacent to higher amenity areas. The issues 24 The matters in contention are: · Inconsistency with character of Hyams Beach; · Insufficient lots sizes; · Adverse impact on landscape character through the removal of vegetation; · Creation of driveway access will result in unacceptable functionality of the local street network; · Cumulative impacts; · The public interest. The evidence 25 Prior to the commencement of the hearing, an inspection of the Hyams Beach Village was carried out in the company of the parties. We viewed the proposed access arrangements off Moonah Road, the variety of housing types within the village, access arrangements to those properties and size of lots on which those dwellings were located. Particular reference was made to two smaller lots, at the corner of Hyam Road and Tulip Street. According to the council's planner, these are two of only three lots within the village that have an area of less than 500 square metres. 26 Evidence was heard from the owner of the property immediately to the west of the site who, whilst within her dwelling, expressed concern in relation to the subdivision and, more particularly, with regard to any future dwelling that may be erected on the northern lot and the potential impact of that dwelling on her view, particularly the vegetation and views across the village. It was acknowledged that views of the water from the property were unlikely to be affected. 27 Mrs Lesley Sanders, the secretary of the Hyams Beach Villagers Association Inc (the Association), gave evidence on behalf of the Association. Mrs Sanders stated that the Association is not against development per se however, was concerned about development that would impact on the amenity or character of the area. It is the view of the Association that the subdivision is not compatible with the residential character of Hyams Beach, as the two lots are less than the 500 square metres referred to in the council's development control plan and that the 42 square metre deficiency is significant. It is also of the view that the proposal would create a high-density area by cramming in another building, and that this would change the character and amenity of the area. Reference was also made to the SEPP and the requirement to consider bulk, size and scale of development and, in the opinion of the Association, the development would not be appropriate to the character and natural scenic quality of the area. 28 During our inspection of the village, Mrs Sanders had referred to a double block of land in Cyrus Street, known as Pacific Lodge, and advised that the Association was concerned with the potential precedent that would be created by approval of the application which could be applied to subdivision of that site and potentially other lots within the village. The Association is of the opinion that the subdivision would destroy the area and reduce land values. 29 The Association also maintained that the South Coast Regional Strategy, a strategic planning document released by the NSW State Government, sought to protect the village, and that the proposed subdivision is contrary to that strategy. Finally, Mrs Sanders expressed concern with the proposed driveway access from Moonah Road, due to the narrow width of the road, the fact that two disabled people lived in the street and that during the holiday season, high pedestrian usage was made of the road and pathway adjoining the site. 30 The applicant in the proceedings and owner of the site also gave evidence and expressed her view that the proposed subdivision met the objectives of the council's DCP, provided for her retirement and would not impact on her neighbours' properties. 31 Expert planning evidence was provided by Ms Downing, for the council, and Mr Carmichael for the applicant. The issues discussed by the experts were:- · DCP 100 · council's tree management order · character/precedent · manoeuvrability 32 Both experts agree that section RE14 is the most relevant section of DCP100. It was Mr Carmichael's view that performance criteria P1-P5 applied to standard lots, and that P6-P11 related to battle-axe lots. In relation to P12, his view was that, as there is no minimum lot size specified in the DCP, small lot subdivision, i.e. lots below standard allotment requirements, did not apply. 33 Ms Downing was of the opinion that all of the performance criteria applied and accordingly, the proposed application must demonstrate compliance with all of the criteria. 34 Both experts agree that there are no minimum controls applicable to lot sizes contained within DCP100 and that the "Acceptable Solutions" are a guide only. 35 It is apparent that there is some overlap contained within the performance criteria included in Element RE14, however, for the purpose of this matter, I do not consider it necessary to distinguish between the criteria. I do however accept that some criteria are more relevant to standard residential allotments, than they are to either battle-axe or small residential allotments, or, in fact to integrated, medium density or low density residential lots, all of which are addressed in RE14. 36 Mr Carmichael made reference to a plan that had been prepared, which indicates trees, that, he says, may be removed without the need for development consent from the council. This plan, formed exhibit E and shows nine trees around the perimeter of the site, which he says may be removed without consent. Ms Downing advised that, as she did not know the exact height of those trees, she was unable to comment on the accuracy of the plan, however, did acknowledge that council's policy was liberal in relation to trees located in close proximity to dwelling houses and referred to the "45 degree rule" which relates to the height of the tree measured at an angle of 45 degrees from a dwelling. Any tree which fits this rule can be removed without the need for council consent. 37 If Mr Carmichael is correct, all the trees along the western boundary of the site could be removed without the need for approval. It is those trees that Mrs Baird, the owner of the adjoining property, had expressed concern about the potential for their removal. I note that the application does not require any trees to be removed and that it is the applicant's intention to retain those trees. 38 In relation to the character of Hyams Beach, the experts agreed that there is no minimum lot size in council's current planning controls, or the draft plan, which is currently being prepared. Ms Downing advised that a dual occupancy development could be constructed on the site and was of the view that this may lead to a better planning outcome, as two dwellings could be designed in such a way as to better relate to the site and its constraints. Mr Carmichael was of the opinion that there would be no measurable or visual difference between a dwelling erected on the proposed second lot and any development that may occur on the site as a dual occupancy development. 39 In relation to any precedent that may be caused from approval of the application, Ms Downing referred to those lots along the eastern side of Cyrus Street, the majority of which have an area in excess of 900 square metres, and to the property immediately to the east of the site and two properties immediately to the west of the site. It is her opinion that it would be the expectation of the owners of those properties that further subdivision opportunities will arise. 40 The issue of the need to leave and enter the site in a forward direction from Moonah Road was discussed. Mr Carmichael was of the opinion that it would be possible to construct a turning area forward of any proposed dwelling on lot 162 to facilitate vehicle manoeuvring. He made reference to a plan, which had been prepared in support of the application, and was provided as part of exhibit A. He said that, with minor alterations, it was clear that any vehicle using the property would leave and enter Moonah Road in a forward direction. Ms Downing was of the opinion that the proposed turning area was inadequate and that excessive excavation would be required to facilitate a turning area that would cater for the range of vehicles likely to use the garage of any dwelling to be erected on the site. Conclusions and findings 41 DCP100 is the primary reference in relation to these proceedings however, I must also consider the provisions of the SLEP, SEPP and REP. 42 In relation to the SLEP, I find that the development would be consistent with the aims and objectives of that plan and the Residential A1 zone, in that it would provide for a variety of residential life styles in the form of detached housing and would be sympathetic to the coastal environment provided those conditions that are identified by the council as part of its strategy are met. The council strategy is established in DCP100. 43 The SEPP requires consideration of the type, bulk, scale and size of development to ensure that it is appropriate for the location and protects and improves the natural scenic quality of the surrounding area. The proposed subdivision does not include any built form and therefore, no assessment of bulk or scale can be made at this stage and will be a matter for the council if consent is granted, however, I am satisfied that an appropriate dwelling can be sited on the land so that it will not have any adverse impacts.. For reasons that I will go to later in this judgment, I find that the type and size of development proposed, i.e. a subdivision of an allotment into two lots, both of which have street frontage, is not inconsistent with the aims of the SEPP, nor contrary to the matters included for consideration in clause 8 of the policy. 44 Similarly, I do not find the proposal to inconsistent with the REP as it will not have a detrimental impact on the cultural or natural values of the Jervis Bay area. 45 It is agreed by both parties that Element RE14 of DCP100 is pertinent to the application and the basis on which it must be determined. There are 15 performance criteria that apply in some way to guide the layout of subdivisions. Some of the criteria are similar and accordingly, I have considered all 15 criteria, to the extent that they are relevant to this two lot subdivision. Whilst DDP100 includes "Acceptable Solutions" it was agreed by the experts that these numerical provisions were not mandatory and therefore did not constitute minimum requirements. 46 Whilst I am not satisfied that the form of the dwelling detailed in the plans prepared by Bush and Beach, which are found in Exhibit C, is an appropriate design for the site, particularly in relation to the need to better integrate the dwelling with the fall of the site and reduce its height, I am satisfied that the dimensions and area of the proposed allotments are sufficient to provide an appropriate area to site a dwelling, any ancillary outbuildings, private open space and convenient vehicle access and parking. I note that the acceptable solution for lot area is 500 square metres, width is 16 metres and depth is 30 metres and that the proposed area of each lot is 455.8 square metres, width is 15.24m and depth is 29.92m. In this case, I consider that the performance criteria is met and accordingly, the acceptable solution is not relevant. 47 I consider that the design of any house on proposed lot 162 should step down the site across a series of different levels so as to minimise earthworks/retaining walls. I am of the opinion that this can be achieved on the northern lot so as to comply with the council's controls for dwelling houses. I note there was no evidence that the existing dwelling would not comply with these controls. 48 Whilst there will need to be trees removed to allow for vehicular access to proposed lot 162, I do not consider the extent of tree removal to be excessive. I also note that there are no natural or cultural features which should be preserved, and that both geotechnical and bushfire risks have been addressed. 49 Both lots have frontage to a street so that the requirements of P4 are satisfied. So too is P5, as neither Moonah Road or Bayview Avenue are distributor roads. P6 is similar to P1 and is satisfied, as is P7. 50 P8 requires a suitable building envelope, of relatively flat land that can be developed. It is this issue that is of concern to the council as it argues that the site constraints do not facilitate the construction of a suitable dwelling on the land. Having observed recent development that has taken place in Hyams Beach and considered the plans lodged in support of the application, I consider, subject to those reservations outlined in paragraphs 46 and 47 of this judgment, that the proposed lots provide a suitable area on which to erect a dwelling house. 51 As the lots are oriented north/south, dwellings can be designed to take advantage of solar access and not overshadow or overlook adjoining properties. 52 Criteria P11 requires the preservation of existing mature trees and I note that the applicant intends to retain all of the trees along the western boundary and minimise the removal of trees in the vicinity of the driveway access from Moonah Road. I also note that the council requires a turning area be provided on the site to facilitate the forward movement of vehicles onto and from the property and that such requirement reduces the opportunity for future planting. The majority of dwellings in Hyams Beach, including those recently redeveloped, do not have turning areas and the front setback area is landscaped which facilitates replacement planting and is considered to be a more satisfactory option in this case due to the low traffic volume in Moonah Road. 53 Criteria P12 is not relevant to this application as SLEP does not include any development standards for the Residential A1 zone and the area is not identified as an area for small lot subdivision in the council's housing strategy or DCP. I am satisfied, having reviewed the concept plan prepared in support of this application in Exhibit C, that a future dwelling could be erected on the land so as to comply with the criteria set in P13. I do not consider the constraints of the site are such that it is necessary to require the establishment of a building envelope or other restrictions on the title of the land as was put to me had been done in Parrott v Kiama Municipal Council [2004] NSWLEC 77. 54 P14 is not relevant to the application and I note that the orientation of the proposed allotments satisfies the preferred orientation as detailed in Figure 10. 55 The matters of change of character and precedent are linked and therefore I do not intend to distinguish my findings. The council and the Hyams Beach Villagers Association are concerned about the impact the subdivision will have on the character of the area and the precedent it will create. I note that the plan included as Attachment 3 to the Joint Expert Planning Report, Exhibit 3, shows the area range and configuration of all lots within the village. I note that of the lots with an area in excess of 900 square metres, only the subject lot and three others have dual road frontage. I also note that whilst two of these lots have frontage to a road, that road is not made and is unlikely to be made due to the gradient of the land. Accordingly, I am of the opinion that only one other lot within the village could regard approval of this application as a precedent to further subdivision. Any future subdivision of other lots would involve battle-axe arrangements and different considerations apply. 56 I also note from the evidence of Ms Downing that a dwelling could be erected on the land as a dual occupancy. Ms Downing agreed that such a dwelling could have similar physical characteristics to the sketch plans of the dwelling submitted with this application (Exhibit C). The difference would be that a dual occupancy development would not be able to be subdivided. For this reason, I do not consider that the construction of a second dwelling on the land would be inconsistent with the likely future character of the area. I do however agree with Mr Moggach, solicitor for the applicant, that change in Hyams Beach is inevitable and this is obvious from the bulk, scale and form of new dwellings that have been recently constructed within the village. I do however consider that the construction of an additional dwelling on the land would not be out of character with the area, and that the council's planning documents can ensure that any dwelling proposed on the land takes into account the site constraints. 57 Therefore, the orders of the Court are: 1. The appeal is upheld; 2. Development application SF10095 for the subdivision of Lot 16 DP 27401, No. 20 Bayview Avenue, Hyams Beach is determined by the grant of consent subject to the conditions included in Annexure A to the orders; 3. the exhibits, other than exhibits 3, C and E may be returned. 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