Land and Environment Court New South Wales Medium Neutral Citation: Cooke v Gosford City Council [2011] NSWLEC 1305 Hearing dates: 4 October 2011 Decision date: 05 October 2011 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is upheld. 2. DA 37247/2009 for the subdivision of Lot 42A in DP 208933, being 42 Point Road, Mooney Mooney into two lots is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit 6. Catchwords: DEVELOPMENT APPLICATION: subdivision into two lots - weight to draft plan - tree loss - impact on character of area - visual impact - whether a dwelling can be constructed on new lot - precedent Legislation Cited: Draft Gosford Local Environmental Plan 2009 Environmental Planning and Assessment Act 1979 Gosford Planning Scheme Ordinance Land and Environment Court Act 1979 Sydney Regional Environment Plan No 20 Cases Cited: Blackmore Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 Category: Principal judgment Parties: Linda Cooke (Applicant) Gosford City Council (Respondent) Representation: Counsel Ms M McMahon, barrister (Applicant) Mr M Everingham, solicitor (Respondent) Solicitors Gosford City Council (Respondent) File Number(s): 10642 of 2011 Judgment 1ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Gosford City Council (the council) of DA 37247/2009 for the subdivision of lot 42A in DP 208933, being 42 Point Road, Mooney Mooney (the site) into two lots. The site is a battleaxe lot with a frontage to Point Road of 4.57 m for the access handle and a width at the rear of the site of 17.25 m near Mooney Mooney Creek. The area of the site is 1,486 sq m including the area of the access handle. 2The locality is predominantly single dwelling residential development of different styles and ages but with some newer development and recent alterations and additions. 3The appeal was heard as a conciliation conference on 4 October 2011 under s 34 of the Land and Environment Court Act 1979 and as no agreement was reached the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me deposing of the proceedings forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii). 4The contentions raised by the council can be grouped into the following main areas: 1. the inconsistency with the draft Gosford Local Environmental Plan 2009 (the draft LEP) 2. the unacceptable loss of existing vegetation and the visual impact of a dwelling that will ultimately be constructed on proposed Lot 2 on the existing character of the area. 3. the ability to construct a dwelling on the proposed Lot 2 given it is partially flood affected, and 4. whether the approval will create an undesirable precedent for similar applications in the area. The proposal 5The proposal seeks to subdivide the site in two lots; proposed Lot 1 is a battleaxe lot with a site area of 720 sq m or 550 sq m excluding the access handle. This lot contains the existing dwelling on the site. Access is obtained from Point Road via an existing right of access over Lot 43A, located at the Point Road frontage. 6Proposed Lot 2 is generally regular in shape and has an area of 755 sq m and a width between 17.05 m and 17.25 m. Proposed Lot 2 is affected by the 1% Annual Exceedence Probability (AEP) flood event, which is defined at 2.0 m Australian Height Datum (AHD). The topography of proposed Lot 2 consists of a steeper section adjoining proposed Lot 1 where a dwelling house can be located and a flatter area to the west, that is subject to inundation. A hypothetical dwelling design was provided to show that dwelling can be located on proposed Lot 2 outside the flood affected area. Proposed lot 2 is also burdened by an existing Right of Carriageway along the northern boundary and a proposed drainage easements along the southern boundary. Relevant planning controls 7The site is within the 2(a) Residential Zone under Gosford Planning Scheme Ordinance (the Ordinance). The proposed subdivision is permissible with consent in this zone. Clause 10(3) provides that consent cannot be granted unless the Court has "taken into consideration the objectives of the zone and the consistency of that development with those objectives as well as the objectives of the Local Government Act 1993 relating to ecologically sustainable development." 8The relevant zone objective is: (a) to make provision for the orderly and economic development of suitable land for a variety of low density housing forms, which are essentially domestic in scale and which have private gardens. 9Clause 10(4) provides that consent must not be granted until consideration has been given to " the character of the development site and the surrounding area.... " 10Clause 30AAA(1) provides, minimum requirements for the subdivision of land in the 2(a) Residential Zone and there was agreement that the proposal satisfies the numerical requirements in this clause. 11Sydney Regional Environment Plan No 20 Hawkesbury Nepean River (the REP) applies. Clause 4(1)(a) states that the general planning considerations in cl 5 the specific planning policies and related recommended strategies in cl 6, which are applicable, must be taken into consideration when considering a development application. The relevant planning policies and recommended strategies in cl 6 identified by the council are: (6) Flora and fauna (7) Riverine scenic quality. ... (9) Rural residential development. (10) Urban development." 12Gosford Development Control Plan 112 - Residential Subdivision (DCP 112) applies. Clause 3.1 provides for the arrangements of lots. Clause 3.2.1 provides numerical standards for subdivision in the 2(a) Residential Zone and it was agreed that the proposal satisfies these requirements. Clause 3.2.2 provides further requirements for minimum area and minimum width based on the slope of the land. The minimum numerical requirements in cl 3.2.1 are repeated for sites with a slope of less than 15%, however for sites with slopes between 15% and 20%, the minimum area is 650 sq m and the minimum width is 18 m. For sites greater than 20%, the minimum area is 800 sq m and the minimum width is 20 m. Clause 3.2.2(c) addresses lots adjoining a public reserve and provides that the minimum area must be increased by an additional 100 sq m. 13Gosford Development Control Plan 89 - Scenic Quality (DCP 89) also applies. The site is located within the Geographic Unit of Lower Hawkesbury with the Mooney Mooney Creek landscape unit being classified as having a regional level of significance. The particular characteristics are stated as: Largely nature creek environments dominated by a steep wooded hills and open water, although different development environments exists. Development objectives are identified for the geographic unit." 14Draft Gosford Local Environmental Plan 2009 (the draft LEP) is a relevant consideration having been advertised. The draft LEP identifies the site as being within Zone R2 Low Density Residential and proposes two development standards, which would require proposed Lot 1 to have a minimum area of 550 sq m and proposed Lot 2 to have a minimum area of 1,850 sq m (pt 4.1(3)). These different lot sizes are shown on the Lot Size Map - Sheet LSZ-102. The evidence 15Expert evidence was provided by town planners, Mr Kerry Nash, for the applicant and Mr K Singh for the council. Mr Russell Kingdom, an arborist, also provided evidence for the applicant. Local residents also provided evidence on the site inspection and supported the contentions raised by the council and raised additional concerns over contamination and increased on street parking. The draft LEP 16The draft LEP was placed on public exhibition in April and May 2011. A report has been endorsed by the council and forwarded to the Department of Planning for finalisation of the draft LEP on 14 September 2011. The relevant Zone R2 Low Density Residential objectives are: To provide for the housing needs of the community within a low density residential environment. To ensure development is compatible with the desired future character of the area covered by this plan. To encourage best practice in the design of low density residential development. To promote ecologically socially and economically sustainable development and the need for and value of biodiversity. 17The draft LEP contains saving provisions at cl 1.8A which state: If a development application has been made before the commencement of this Plan in relation to the land to which this Plan applies and the application has not been finally determined before that commencement the application must be determined as if the Plan has been exhibited but had not commenced. 18The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted ( Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 at 5). Relevantly in Terrace Tower , Spigelman CJ states at pars 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may, of course, grant consent to a development application which does not comply with the draft instrument. Different kinds of planning controls will be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the preexisting instrument, which would in a substantial way undermine that objective. 19If the draft LEP is imminent and certain Terrace Tower ,at par 7, raises the question of whether the proposed development will preserve the character anticipated by Zone R2 and whether the development will undermine the objectives of the zone. 20In Blackmore Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 Lloyd J relevantly states, at par 30: Whether one applies the test of ' significant weight', or 'some weight', or 'considerable weight' or 'due force' or 'determining weight' to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is 'antipathetic' thereto ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council [1991] 74 LGRA 185 at 193). 21The questions to be answered are, firstly, whether the draft LEP is imminent and certain and, if so, what weight should the draft LEP be given in the consideration of the application? Secondly, whether the proposal undermines the expressed future planning objectives for the area in the draft LEP? 22On the first question of whether the draft LEP is imminent; I accept that there is a reasonable likelihood that the draft LEP will be gazetted in the form endorsed by the council. The draft LEP has been advertised, the council staff have assessed the submissions, reported to the council where the report was endorsed by the elected council and sent to the Department of Planning for finalisation. 23On the question of imminency; there was no evidence to indicate a timetable for the finalisation of the draft LEP. Although I would accept that the issue of imminence is of less importance than that of certainty. The lack of a timetable for the finalisation does, however, reduce the weight to be given to the draft LEP, if only to a minor extent. 24The next question to be answered is whether the proposed subdivision will undermine the expressed planning objectives for the area, as set out in the draft LEP. As I understand, the objectives for Zone R2 do not change, even though pt 4.1(3) specifies different minimum lot sizes for different areas within the same zone, based on the Lot Size Map. 25I do not accept that the planning objectives for Zone R2 will be so significantly undermined by the proposed development that the draft LEP should be given determinative weight in this case. The proposal is still for a use that is permissible, except for the minimum lot size requirements for proposed Lot 2. Proposed Lot 1 will still satisfy the minimum lot size requirement under the draft LEP. To adopt the approach of the council's town planner, Mr Singh, that the draft LEP should be given determinative weight would be to largely ignore the work to be given to the saving provisions in cl 1.8A. Tree loss Tree significance 26The issue of tree loss was seen by the council to, initially, warrant a flora and fauna report and a 7-part test under s 5A of the Environmental Planning and Assessment Act 1979 and, if acceptable, the loss of vegetation would create an unacceptable impact on the visual character of the area. The evidence on this issue was limited to a report from Mr Kingdom, who also attended the hearing and provided further oral evidence. He identified some 18 trees in the area of proposed Lot 2 where a dwelling would likely be constructed, although based on the hypothetical dwelling design, 11 trees would be lost. The majority of the trees were cheese trees ( Glochidion ferinandi ) but three of the more substantial trees were identified as glossy privet ( Ligustrum lucidum ). These are classified as weeds by the council and excluded from the provisions of council's Tree Preservation Order. The unchallenged evidence of Mr Kingdom was that the identified trees are not threatened species, part of a population or ecological community and provided no habitat for threatened species, population or ecological communities. 27Section 5A is invoked if there is "a significant" affect on threatened species populations or ecological communities and their habitat. As the council provided no evidence to support their contention that, firstly, the site contained any threatened species, population, ecological communities and the habitats and, secondly, there was a significant affect on these threatened species, populations and ecological communities and habitats, this contention is unfounded. In the absence of any evidence to refute the conclusions of Mr Kingdom, I concur with his conclusions that there is no basis for a further flora and fauna report or a 7-part test. Visual impact 28On the second matter of the visual impact of the loss of vegetation on the character of the area; I agree with the evidence of Mr Nash that the impact will be minimal and not a reason to refuse the application. 29The potential visual impact of a dwelling on proposed Lot 2 on the scenic quality of the area is raised in a number of planning documents, including the REP at cl 6(6)(b) and cl 7 and the development objectives from the Lower Hawkesbury Geographic Unit in DCP 89. 30The concerns expressed by Mr Singh centre on a loss of existing vegetation in the area proposed for a dwelling on proposed Lot 2. While DCP 89 describes the Lower Hawkesbury Geographic Unit has being "largely nature creek environment dominated by steep wooded hills and open water"; this must be seen as a general description only given the extent of the Lower Hawkesbury Geographic Unit. In this case, the character also has an urban form and this form must also be considered in any assessment of character. I agree with Mr Nash that any dwelling would not be visible from Point Road and would be largely screened from Mooney Mooney Creek by existing vegetation, including mangroves, which are unlikely to be disturbed over time. Also, with the benefit of the site inspection, I observed that there are dwellings to the north of the site that have a similar setback to Mooney Mooney Creek to a likely dwelling on proposed Lot 2. Considering the relevant matters in the REP and DCP 89, I do not accept that a dwelling on proposed Lot 2 will have an unacceptable impact on the scenic qualities of the area. Can a dwelling be constructed on proposed Lot 2? 31On the question of whether a dwelling can be constructed on proposed Lot 2 above the 2 m AHD contour; I agree with Mr Nash that this is not a matter that would support the refusal of the application. The development application before the Court is for subdivision only and the council correctly sought confirmation that a dwelling can be constructed on proposed Lot 2, given its potential for inundation. 32While Mr Singh expressed some concerns over the form of the hypothetical design in relation to compliance with council's height and building envelope controls, I am satisfied that a dwelling could reasonably be located on proposed Lot 2 (including likely ancillary facilities). The area above the 1% AEP flood event level has an area of around 200 sq m. Even though Mr Singh stated that the available area should be reduced to around 170 sq m because of the drainage easement and right of footway along the sound boundaries, I agree with Mr Nash that these constraints do not substantially impact on the available area for a dwelling given the need to provide setbacks to these boundaries, in any event. 33There was disagreement on question of the slope of site between Mr Nash and Mr Singh. Mr Nash maintains that the slope of the site varied between 8.75% and 11%, whereas Mr Sing maintains that the slope of the site was greater than 20%. This is a relevant matter because of the requirements in cl 3.2.2 of DCP 112 however I do not accept it is necessary to determine the differences of opinion as I have found that a dwelling can be reasonably located on proposed Lot 2 based on the general form of the hypothetical dwelling. I am satisfied that proposed Lot 2 satisfies the relevant objectives in cl 3.1.1, 3.1.2 and 3.1.3, which states: 3.1.1 To provide sufficient area and dimensions to enable the construction of dwellings, ancillary outbuildings, private open space, vehicle access and parking. 3.1.2 To ensure that allotments and the resulting residential development is in character with the locality and specific land form features of the site such as; slope, aspect, vegetation and position in relation to adjacent building. 3.1.3 To ensure that the elements of the site, including slope, size, orientation etc provide maximum opportunities for future building design, privacy, orientation, solar access and useable outdoor living space on site. 34On this basis, the requirements in cl 3.2.2 for an increased minimum area and minimum width because of the slope of the site and proximity to a public reserve are unnecessary. Precedent 35On the issue of precedent; I accept that the precedent can be a valid town planning consideration ( Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75) however, in this case, the circumstances are peculiar to the site and the application and, in my view, are not readily transferable to other sites in the area. I am also mindful that the draft LEP will also prohibit such subdivision if gazetted in its draft form, if any application is not captured by the savings provisions in cl 1.8A. Resident concerns 36Of those matters raised by local residents and not addressed earlier in the judgment; the matter of potential contamination was acknowledged by the council and a condition requiring a Stage 1 Preliminary Contamination Investigation was included and accepted by the applicant. 37The matter of additional street parking is appropriately addressed when a development application is submitted for a dwelling on proposed Lot 2 where the adequacy of off street parking can be assessed. Conditions 38There was general agreement on the draft conditions with the exception of deferred commencement conditions 1, 2, 3 and 4 that deal with the Stage 1 Preliminary Contamination Investigation. The applicant, while accepting the conditions, submits that the conditions should be operational conditions that must be satisfied prior to the issue of a subdivision certificate rather than deferred commencement conditions. I concur with this submission and the conditions should be amended to reflect this finding. 39Condition 5 requiring a s 5A assessment can be deleted for the reasons set out earlier in the judgment. Condition 6 requiring a geotechnical report is more appropriate as an operational condition and condition 7 requiring details of protection for the Port Jackson Fig is also more appropriate as an operational condition. Orders 40There being no reasons why a development consent should not be granted, including those considerations required by cl 10(3) and 10(4), the orders of the Court are that: 1. The appeal is upheld. 2. DA 372472009 for the subdivision of lot 42A in DP 208933, being 42 Point Road, Mooney Mooney into two lots is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit 6. G T Brown Acting Senior Commissioner 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: 26 October 2011