Land and Environment Court New South Wales Medium Neutral Citation: EHA Investments Pty Ltd v Liverpool City Council [2011] NSWLEC 1263 Hearing dates: 18-19 August 2011 Decision date: 05 September 2011 Jurisdiction: Class 1 Before: Morris C Decision: The appeal is upheld Catchwords: DEVELOPMENT APPLICATION: Subdivision; lot width; cul-de-sac road; parking. Legislation Cited: Liverpool Local Environmental Plan 2008; State Environmental Planning Policy No 1 - Development Standards; Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment. Texts Cited: Liverpool Development Control Plan 2008. Category: Principal judgment Parties: EHA Investments Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Ms M L Taylor Bartier Perry (Applicant) Mr A Seton Marsdens Law Group (Respondent) File Number(s): 10382 of 2011 Judgment 1This is an appeal against the refusal by Liverpool City Council (the council) of Development Application No 533/2011 (the application) which proposes the demolition of an existing dwelling and associated structures and the subdivision on an existing lot into 9 Torrens Title residential lots with associated cul-de-sac public road at Lot 612 DP 881998 No 24-32 Boltons Street, Horningsea Park (the site). 2The main contentions in the case relate to the failure of the applicant to comply with the minimum lot width controls contained within Liverpool Local Environmental Plan 2008 (the LEP) and Liverpool Development Control Plan 2008 (the DCP); whether there is sufficient area available within the proposed road reserve for vehicle manoeuvring and car parking; the traffic impacts of the development and its density. The site and its context 3The site is one of two residue lots created in 1998 to facilitate residential subdivision in the Horningsea Park residential release area. An adjoining allotment to the immediate east of the site was incorporated into what is now the John Edmondson High School and the other residue lot has been further subdivided to provide an extension of Boltons Street across the entire western boundary of the site. 4The site is a slightly irregular shaped allotment with an area of 3737sqm, a slight fall from north to south and frontage to Boltons Street of 74.045m. 5An older style single storey dwelling house and large metal shed are currently erected on the site, both of which are proposed to be demolished. There are a number of trees and shrubs on the site. The application does not seek consent for tree removal. The site is currently higher than the adjoining roadway and is retained by a timber retaining wall. A metal fence is erected on top of that wall which runs along the western property boundary. Vehicular access to the site is currently available from Boltons Street. 6Development in the vicinity of the site comprises one and two storey detached dwelling houses on a range of lot sizes, varying, according to evidence provided, from 300-700 sqm. The majority have direct frontage to the road however, the lots to the immediate north of the site area accessed and have frontage to, a series of rights-of-way. The local high school is located to the immediate rear of the site and has frontage to Horningsea Park Drive. No direct pedestrian access to the school is available from Boltons Street. 7Boltons Street is a local road that runs of Joshua Moore Drive, a collector road, and also has an intersection at its southern extent with Willumba Street. Background and the proposal 8The application proposes demolition of all existing buildings and structures on the site and the subdivision of the existing lot into nine Torrens Title lots and the construction of a cul-de-sac road to be dedicated to the council as a public road. 9The proposed lots would range in size from 305sqm to 399.36sqm. Proposed lots 1, 2, 8 and 9 have frontage to and would obtain vehicular access from Boltons Street. Lots 2 and 8 also front the proposed cul-de-sac road which would be a minimum of 13.5m wide and provide for a footpath area of 3.5m width and a road surface width of 6.5m minimum. That road has an approximate length, including turning bulb, of 38m. 10Proposed lots 3-7 front the cul-de-sac road and have frontages that range from 7.23m to 8.424m. 11The application was initially considered by the council's Independent Hearing and Assessment Panel (IHAP) with the council's staff recommending the application be approved. The IHAP recommended deferral of the application to allow the applicant to address its concerns in relation to non-compliance with minimum lot width controls, need to provide on street parking and consideration of solar orientation of the proposed lots. The council, at its meeting of 18 April 2011 adopted a similar recommendation, deferring the application to allow the applicant to submit an amended plan that addressed the lot width control, the objectives of the R2 Low Density zone, traffic movements, density and car parking arrangements. 12The applicant did not follow this course and lodged an appeal against the council's deemed refusal of the application. The appeal documents include an amended plan of subdivision and a revised written request seeking to justify the contravention of the development standard in relation to minimum lot width. The main difference to the plans is the alteration to the areas of some of the lots. Additional information regarding manoeuvring and potential building envelopes is also provided. The plans before the Court are in accordance with the details described above. 13The council has since determined the application by way of refusal. The grounds of refusal are as follows: (1) The development is inconsistent with the provisions of Liverpool Local Environmental Plan 2008. In particular: (a)The proposal is contrary to the objectives of zone R2 - Low Density Residential prescribed by the Land Use Table in that the plan of subdivision does not maintain the low scale residential character and not maintain a high level of residential amenity; and (b)The proposal is inconsistent with clause 7.13 "Minimum lot width in zones R1, R2, R3 and R4 zones" (pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979). (2) The proposed development is likely to adversely impact on the built environment in regards to: (a)Increase in traffic generation as a consequence of the development; and (b)Reduced availability of on-street parking and vehicle manoeuvring as a consequence of the road (cul-de-sac) construction (pursuant to Section 79C(1)(6)(8) (sic) of the Environmental Planning and Assessment Act, 1979). (3) Due to the reasons above, approval would not be in the public interest. The Planning Controls 14The site is zoned R2 Low Density Residential under the provisions of the LEP. Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R2 zone are: · To provide for the housing needs of the community within a low density residential environment. · To enable other land uses that provide facilities or services to meet the day to day needs of residents. · To provide a suitable low scale residential character commensurate with a low dwelling density. · To ensure that a high level of residential amenity is achieved and maintained. 15Clause 2.6 of the LEP provides for the subdivision of land provided development consent is obtained. Clause 4.6 provides for exceptions to development standards and establishes the process to determine whether consent should be granted to an application where a particular development standard is not met. That includes a requirement to obtain the concurrence of the Director General. Subclause (5) lists those matters which must be considered by the Director General in deciding to grant concurrence and those matters are: (a)whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b)the public benefit of maintaining the development standard, and (c)any other matters required to be taken into consideration by the Director-General before granting concurrence. 16The parties agree that the Court can assume the role of the Director General provided consideration of those matters listed in clause 4.6(5) is given. State Environmental Planning Policy No 1 - Development Standards does not apply to the application. 17Clause 7.13 provides minimum lot width development controls for land zoned R1, R, R3 and R4. Those sub-clauses relevant to the application are: (1) The objective of this clause is to ensure that lot dimensions are able to accommodate residential development that is suitable for its purpose and is consistent with relevant development controls. (2) This clause applies to the subdivision of land in Zone R1 General Residential, R2 Low Density Residential, R3 Medium Density Residential or R4 High Density Residential. (3) The width of any lot, resulting from a subdivision of land to which this clause applies, that is capable of accommodating residential development but is not the subject of a development application for that purpose, must not be less than 10 metres except as provided by subclause (4). (4) If a lot resulting from a subdivision of land to which this clause applies is a battle-axe lot: (a)the lot must have an average width of more than 10 metres and a minimum width of at least 5 metres, and (b)the access handle must not be included when calculating the size of the lot for the purposes of clause 4.1 (3). 18The application does not include residential development on any of the lots and accordingly, pursuant to subclause (3), each lot must have a width not less than 10m. None of the lots proposed are battle-axe lots and therefore the provisions of subclause (4) do not apply. 19The parties agree that all other relevant provisions of the LEP are met by the application, in particular minimum lot area (300sqm). 20The DCP provides more detailed planning controls for regulating development of land to which the LEP applies. Parts 1.1, 1.2 and 2.2 are relevant to the application. 21Section 10 of Part 1.1 relates to contamination and, pursuant to the provisions of this clause, the applicant undertook a salinity assessment and a preliminary site contamination investigation. This concludes the site is suitable for residential development. Whilst not one of the contentions in the case, there was disagreement as to whether further investigation, and in particular a Detailed Contamination Investigation (Stage 2) was required however, the parties have now agreed to all of the conditions to be applied if the Court consents to the application. 22Section 3 of Part 1.2 applies to Subdivision of Land and Buildings and includes a series of objectives as follows: (a)To provide a functional, attractive and safe environment for residents that are consistent with community standards and needs. (b)To minimise adverse effects on the natural environment. (c)To provide for the needs of future users of the land in respect to building requirements vehicular and pedestrian access, provision of services and an amenity appropriate to the zoning of the land. (d)Provide for the economic utilisation of the land resource of the area. (e)To achieve a balance between the development / subdivision of residential, commercial and industrial land and the amenity of existing occupants. (f)To provide for an equitable and efficient distribution of public amenities and services. (g)To minimise Council's future maintenance costs for roads, services and open spaces. 23Section 3.4 of Part 1.2 applies to Residential Zones and includes further details in relation to minimum lot width. Those controls are: Minimum Lot Width 1. Subdivision of land shall meet the minimum lot width requirements as set out in Table 7. 2. Subdivision of land involving the creation of lots less than 300sqm or less than 10m lot width shall include the dwelling house as part of the development application. 3. The subdivision plan will not be released until the dwelling which was approved in conjunction with the subdivision is completed to above ground floor level. Zones Minimum Lot Size Minimum lot Width (as per LLEP 2008 minimum lot size map) R4 Any lot size shown on the Lot Size Map greater than 300sqm 24m R1, R2 600-1000sqm 20m R2 450sqm 15m R1, R3 450sqm 12m R1, R2 400sqm 11m R1, R2 300sqm 9m R1, R2 300sqm (Area 3) 9m R1, R2, R3 300sqm (Area 2) 8m R1, R4 300sqm (Area 1) 7m 24Submissions were made during the hearing suggesting that the DCP provisions were inconsistent as they propose a 9m minimum lot width whereas the LEP has a standard of 10m. I do not agree as I read clause 7.13(3) of the LEP to allow lots with a width of less than 10m but only where the subdivision application includes plans of the intended residential development on each lot that is less than 10m wide. The DCP then introduces a requirement that puts a lower limit on such lots of 9m in width and area of 300sqm and, to ensure that the approved dwelling is constructed, the DCP includes a requirement that the dwelling is completed to above ground floor level prior to release of the subdivision certificate. 25The application does not include any plans for residential development. Plans were tendered (Exhibit A) which indicate a possible building envelope for dwellings on each lot. Those envelopes have been designed to accord with the relevant planning controls for front and side boundary setbacks, landscaped area, private open space and car parking. 26Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment (GREP) also applies to the site. The council officer assessment of the application against this plan found the application would satisfy all relevant provisions provided appropriate sedimentation and erosion controls were implemented during construction and appropriate stormwater management devices were incorporated into the drainage system. There was no contention in relation to this issue and agreed conditions of consent are proposed to ensure compliance. The issues 27The contentions can be summarised into three matters; compliance with the council's planning and development controls; the adequacy of the proposed lots to accommodate an appropriate built form including parking with particular regard to lot width and the adequacy of the proposed roadway to cater for the needs of the development, particularly parking and manoeuvring. The evidence 28The hearing commenced on site and evidence was heard from three persons, all residents of Boltons Street who objected to the proposal. They all recognised that the site should be subdivided at some stage however were concerned about the design of the subdivision. Matters raised are summarised as: * Proposal considered to represent an over-development of the site; * Non-compliance with the council's controls; * Lots too small and only 1% larger than the minimum area control and not in keeping with the character of the area; * Boltons Street is narrow and with cars parked on both sides it is impossible to pass, development does not provide any on street parking so visitors and residents are likely to use Boltons Street; * Internal road too small to service the number of lots proposed; * A more appropriate form of development for the site would be 5-6 lots all having direct frontage to Boltons Street; * Inadequate provision made for parking as it will not be possible to park within the proposed cul-de-sac due to its short length and the number of driveways proposed; * Inadequate manoeuvring within the proposed cul-de-sac resulting in a safety risk, particularly to children who play on the street; * Location of proposed driveways too close to a blind corner increase safety risks; * Density is excessive; * Drainage concerns stating there has been localised flooding. 29An inspection of the locality and a number of completed cul-de-sacs within the vicinity of the site was also conducted in the company of the parties and their experts. 30Expert evidence on traffic car parking and manoeuvring was heard from Mr Hallam for the applicant and Mr Bridgman for the council and on town planning from Mr Nangle for the applicant and Mr Brown for the council. Traffic, car parking and manoeuvring 31The experts agree that the design of the cul-de-sac is such that an 85 th percentile car and a 7.7m garbage truck swept path can be accommodated providing no cars are parked in the street. To ensure this is the case, they recommend the implementation of full time No Stopping or No Parking restrictions along its entire length to facilitate vehicle manoeuvring. As a consequence, no visitor parking would be available on street within the proposed cul-de-sac and all parking including the two parking spaces required under the DCP will have to be provided within each allotment. They agree that such restrictions are not in place in any other cul-de-sac apart from one adjacent to the school. That road also had restrictions on kerbside parking along its entire length however, nobody was aware of the circumstances that applied in that street. 32An analysis of the traffic generation arising from the proposal has been conducted and it is agreed that the additional traffic volumes (said to be 8 vehicles/hour) would have an insignificant impact on flows. An analysis of the adjoining road network has also been undertaken and it is agreed that the additional traffic volume would be substantially less than the local street goal of 200 vehicles per hour. The capacity of the intersection of Boltons Street and Joshua Moore Drive was also undertaken and it is agreed that it would retain a level of service of A for all movements. 33From this evidence, I can conclude that the traffic generated by the proposed subdivision will not have an adverse impact on the built environment or the amenity of the area. 34The experts were asked to assess the location of parking and driveways detailed with the building envelopes on the plan Exhibit A. Mr Hallam says that there is a need to increase the size of a number of garages so that an internal dimension of 5.4m x 5.4m is provided. He says that the alignment of the garages is satisfactory but acknowledged in some cases a vehicle may overhang the footpath area. Mr Bridgman said that this was unsatisfactory and contrary to the traffic road rules. Mr Hallam said that it would be possible to set the garages further back within the lot to ensure all cars were legally parked. The planning experts further considered this issue. Planning 35Mr Brown considers that there are more appropriate solutions to the subdivision, which would provide for regular shaped lots and overcome the unsatisfactory design issues of the application. Mr Nangle says that the design is appropriate and can accommodate a dwelling on each lot that would comply with the relevant planning controls. 36Mr Brown says that as the application does not include designs for individual dwellings, it is not possible to assess the likely impacts of the subdivision. He also says that a number of factors including the small lot size, the context of the surrounding area, orientation of some of the lots, lack of area allocated for servicing the properties and the likely impact of garage doors to the streetscape all contribute to an overdevelopment of the site. Mr Nangle says that the application complies with the land area control, the 10m width is achieved at the building alignment of each dwelling, the average width of the lots exceed 10m, there are similarly shaped lots in other cul-de-sacs within the vicinity of the site and that the proposed building footprints demonstrate that each site can accommodate a dwelling house that meets the council's controls and for this reason the density of development is appropriate and consistent with the objectives of the LEP and DCP. 37Mr Nangle had prepared two reports regarding non-compliance with the minimum width development standard. Ms Taylor for the applicant argued that the objection pursuant to clause 4.6 was not required as the site width at the building line for all lots exceeded 10m. I do not accept this submission and agree with Mr Seton for the council that the width of proposed lots 3, 4, 5, 6 and 7 are below 10m and therefore, for consent to be granted, an exception to the development standard is required. 38Mr Nangle's report concluded that the lots could comfortably accommodate residential development and accordingly satisfied the objective of the development control as detailed in clause 7.13. In addition, he says that as the lots are in excess of 10m in width at the building alignment and, in all cases widen in the area of the building envelope to greater width at the rear boundaries. These range from 10-36m and demonstrate that the erection of dwellings in accord with the council's other controls can be achieved. In addition, he says that not only can the lots accommodate a dwelling house, but also vehicle access and carparking, private open space and all round reasonable amenity to neighbours. He says that the housing needs of the community are provided for in a low density environment, all lots comply with minimum area controls and the application will enable the adequate protection of residential amenity in terms of solar access and overshadowing, visual and acoustic privacy, views and outlooks, daylight and ventilation to both the new lots and existing adjoining development. He says the application is in the public interest as it provides additional housing in proximity to a range of services, facilities and amenities, and creates land for future low density housing opportunities with appropriate road and drainage infrastructure. He says that there is adequate opportunity to provide adequate landscaping between the kerb line and the front property boundary and protect the public domain and the four lots that front Boltons Street will retain the character of that street. In terms of bulk, scale and streetscape, he says the land subdivision pattern proposed is a better planning solution in character with the established character of Boltons Street and the area in general. 39Mr Brown says that he considers that proposed lots 1, 2, 3, 4, 7 and 9 were satisfactory however lots 5, 6 and 8 were not. The applicant tendered a possible dwelling design for Lot 5 and it was agreed that it complied with the council's controls however Mr Brown considered the proximity of the windows in north-western portion of the dwelling to lot 4 did not provide good amenity. Mr Nangle said that these could be oriented to the north and improve the amenity and also solar access whilst maintaining the layout. 40As the envelope plan had not been made available to Mr Brown prior to the hearing, he did not have the opportunity to thoroughly assess it against the council's controls however he did provide assistance to the Court, together with Mr Nangle to identify areas where the footprints did not satisfy those controls, in particular, the siting and size of garages. 41Mr Brown also considered that it would be necessary to design a site specific dwelling to suit the constraints of lots 6 and 8 and that a standard project home would not meet the council's controls. Mr Nangle said that this is in fact desirable to ensure that the dwellings were designed to address the corners and a more appropriate streetscape would result. 42The planners were asked to compare the proposed cul-de-sac with those in the vicinity of the site that were viewed by the Court. Other than Cayley Place, they agreed that all of the roads were longer than that proposed by the application and that this allowed for on street parking. Similarly, most of the lots in those streets would meet the 10m minimum width. Mr Brown considered that there was a greater spatial separation between dwellings in the streets other than Cayley Place and said that this was desirable. Mr Nangle considered that the lot layout was appropriate and allowed for appropriate residential development. 43The planners agreed that alterations were needed to the building envelopes shown in Exhibit A. Mr Nangle said that this would only involve 'tweaking' them however Mr Brown was not satisfied with the design of three of the lots. 44With regard to the recommendations of the traffic experts to implement No Parking/Stopping controls in the cul-de-sac, Mr Brown said that this would not be good outcome. Mr Nangle says that it would not be a problem as the lots can provide the two parking spaces required by the council and that there is no requirement for visitor parking. He does accept that any additional demand would be met in Boltons Street however he says that this is appropriate. Conclusion and findings 45It is apparent from the traffic and parking experts that the application would meet the council's design requirements in relation to road construction and that the bulb of the proposed cul-de-sac is larger than those observed during the site view. Those cul-de-sacs, apart from one in the vicinity of the school, did not have any parking restrictions in place. This conclusion accords with that of the council officers who have stated, in the report to the IHAP, that the design of the cul-de-sac is in accordance with council's required design specifications and with the objectives of Part 2.2 of the DCP. 46I do not consider, on the basis of evidence provided, that it is necessary to implement No Stopping provisions within the cul-de-sac and note that the council's draft condition, as agreed by the applicant, is for the matter to be considered by the council's Traffic Committee. This is acceptable. 47It is necessary for me to consider whether the application merits consent and in particular whether an exception to the development standard for minimum site width is appropriate. I must consider those matters included in clauses 4.6(4) and (5) of the LEP. 48Clause 4.6(4) requires that I must be satisfied that the applicant's written request adequately addressed the matters required to be demonstrated by subclause (3). That is that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard. The applicant's reasons are detailed in [38] and, with the evidence heard in regard to the building envelopes, I am satisfied that they are reasonable and demonstrate that a dwelling can be accommodated on each lot. 49I consider that the objectives of the development standard and the council's LEP and the zone objectives are met. It is apparent that each site can contain a dwelling house, two carparking spaces and that those future dwelling houses would be provided with appropriate solar access, open space and amenity. I do not consider that the inability to park within a cul-de-sac that services five lots, all of which would have on-site parking for a minimum of two vehicles, is a reason on its own to require compliance with the development control. 50Clause 4.6(5) requires consideration of three matters. Firstly, whether contravention of the development standard raises any matter of significance for State or regional environmental planning. I have no evidence that this is the case and, considering the local situation that applies, find that there are no State or regional implications that would arise from the exception being granted. 51Secondly, I must consider the public benefit of maintaining the development standard. The objectives provide a guide to its intent and accordingly, it is in the public interest to ensure that those objectives are achieved. I am satisfied, from the evidence provided by the planners, that the lot dimensions are able to accommodate residential development that is suitable for its purpose and is consistent with relevant development controls. I also turn to the objectives of the R2 zone and find that the application would be consistent with those objectives as the development will provide for housing in a low density environment; would lead to development of low scale residential character commensurate with that density. I am satisfied that through implementation of the relevant planning controls when the council assesses development applications for the construction of dwelling on each lot that this development would achieve a high level of amenity and accordingly, the existing amenity of the area would be maintained. 52Finally, I would need to consider other prescribed matters and in this regard, there are no other matters that are relevant to this application. 53In view of the above findings, I find that compliance with the 10m minimum lot width development standard, in this case, is not necessary. 54Having made that finding, considered all of the evidence provided and also having determined that the application is consistent with the council's planning controls, I conclude that consent can be granted. Orders 55The Orders of the Court are: 1.The appeal is upheld. 2.Development Application No 533/2011 for the demolition of an existing dwelling and associated structures and the subdivision on an existing lot into 9 Torrens Title residential lots with associated cul-de-sac public road at Lot 612 DP 881998 No 24-32 Boltons Street, Horningsea Park is determined by the grant of consent and subject to those conditions in Annexure A. 3.The exhibits, other than exhibits A, B, J and 2, are returned. Sue Morris Commissioner of the Court ********** 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. Decision last updated: 06 September 2011