Land and Environment Court New South Wales Medium Neutral Citation: Ribarevski v Hurstville City Council [2013] NSWLEC 1023 Hearing dates: 29 January 2013 Decision date: 08 February 2013 Jurisdiction: Class 1 Before: Hussey C Decision: (1)The appeal is dismissed. (2)Development consent for DA 11/DA - 283 for a 3 - lot Torrens Title subdivision of Lots 12 and 13 DP 35316 Loader Avenue, Beverly Hills is refused. (3)The exhibits be returned except 1, 2 and A. Catchwords: Subdivision; Acceptability of Torrens Title lot sizes, compatibility with the surrounding subdivision pattern, "stepped subdivision" procedure relating to approved multiple dwelling development Legislation Cited: Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 2012 Hurstville Local Environmental Plan 1994 Draft Hurstville Local Environmental Plan 2011 Hurstville Development Control Plan No 1. Cases Cited: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 Brendan Howell v City of Canada Bay [2005] NSWLEC 335 Stocklands Development Pty Ltd v Manly Council [2004] NSWLEC 472 Vescio v Manly Council [2012] NSWLEC 1098 Zhang v Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Sasha Ribarevski (Applicant) Hurstville City Council (Respondent) Representation: Ms L Saw (Applicant) Mr M Cotton (Respondent) File Number(s): 11030 of 2012 Judgment Background 1This appeal is against council's refusal of a 3 - lot Torrens Title subdivision application at Nos 2 and 4 Loader Avenue, Beverly Hills. The proposed subdivision also relates to achieving separate titles for an approved, 3 - unit multiple dwelling development (MDD) for the site. 2In approving the MDD, the council imposed a condition (No 83) requiring the consolidation of the 2 existing allotments. The applicant's proposal is to satisfy all of the MDD conditions, including the lot consolidation as a first step and then subdivide it to create the 3 - Torrens Title lots to provide separate title to each of the 3 approved dwelling units. 3Consequently for the appeal, the council's primary contention is that the subdivision proposal would result in undersized lots, which would not be compatible with the surrounding area subdivision pattern or represent orderly development of the land. The property 4The site is described as Lots 12 and 13 in DP 35316. It has a combined Loader Avenue frontage of 31.24m and total area of 1218.8 sq m. There are existing single level dwellings with outbuildings erected on each existing lot. 5The subject site is located on the northern side of Loader Avenue, Beverly Hills near the corner of Penshurst Street. Adjoining the site to the west is a single storey dwelling house with outbuildings. Adjoining the site to the east is the rear of a site which fronts Penshurst Street. This site contains buildings used by the Royal Australian Air Force. To the rear of the site are two (2) storey dwellings. Loader Avenue is characterised by one (1) and two (2) storey residential developments comprising primarily single dwelling houses and dual occupancy developments and some multiple dwelling developments. The proposal 6This proposal is to subdivide the 2 existing lots into the following 3 lots. Proposed lot Proposed site area of lot Proposed width of lot Lot1 410.16sqm 10.513m Lot 2 398.47sqm 10.213m Lot 3 410.16sqm 10.513m 7The related MDD is Development Consent 09/DA - 172, which granted consent for the demolition of the existing structures on the site and the construction of the 3 x 4 - bedroom townhouses on the basis of a multiple dwelling development. Each townhouse has direct frontage to Loader Avenue. This consent required the consolidation of the 2 existing lots with the 3 - unit development on the larger consolidated lot presumably being managed by way of some form of owner's corporation. 8As noted, the subject proposal is to implement the MDD consent on a 'stepped basis' by firstly consolidating the 2 existing lots and then subdividing this consolidated lot into the 3 Torrens Title with boundaries that retrofit aforementioned townhouses. Planning controls 9The following controls are relevant: (i)Hurstville LEP 1994 (HLEP 1994); under which the site is zoned 2 Residential and the proposal is permissible with consent. Clause 8 contains the zone objectives and development control table. Clause 10 deals with subdivision generally and cl 11 requires a minimum lot size of 450 sq m and minimum width of 15m for the erection of a dwelling. The associated objectives are to: (a) retain the pattern of subdivision in residential areas as reflected in lot size, orientation and shape, and (b) ensure allotments have a minimum size so as to provide landscaped areas that are suitable for tree planting, and ... (ii) Hurstville LEP 2012 (HLEP 2012). This LEP was gazetted on the 7 December 2012 and it contains a specific development standard for the minimum subdivision lot size of 450 sq m in the 'locality'. However Cl 1.8A includes a "Savings Provision" that provides for the subject application to be determined as if this plan had not commenced. It contains similar zone objectives to HLEP 1994. 10The associated development controls are contained in the Hurstville DCP No 1. Section 3.2 contains the subdivision controls wherein a minimum lot size of 450 sq m and minimum frontage of 15m is required. The primary aims are to: (a) enable the orderly subdivision of land; (b) ensure the creation of new allotments are compatible with the surrounding subdivision pattern as reflected in lot size, orientation and shape; (c) ensure sufficient building and landscaped area is available on newly created allotments;... The evidence 11Detailed evidence in the form of a joint planning report was presented by: * Ms P Bizimis; Council's planner. * Mr K Nash; Applicant's consultant planner. 12Insofar as the subdivision application is related to the MDD consent, the planners initially agreed that the intent of that consent could be achieved by way of a deferred commencement consent, which firstly requires the consolidation of the 2 lots as per the original Condition 83. Then a final Occupation Certificate to be issued for the completed dwellings (DC 09/DA - 172). Following this, compliance with the other subdivision conditions of consent for the subject application would then enable completion of the 3 - lot subdivision. 13However, Ms Bizimis does not support the subject subdivision proposal because it would result in undersized lots, which are not consistent with the existing and proposed lot pattern of the relevant "locality" area surrounding the site. This locality plan was agreed by the planners as the appropriate reference area. 14Against this, Mr Nash analysed subdivision data for lots within the "locality" resulting in: + Number of allotments in nominated locality 83 + Number of allotments with an area less than 450 m2 15 (18%) + Smallest allotment not subject to dual occupancy subdivision 221.3 m2 + Largest allotment not being a Department of Housing development 910.5m2 + Smallest dual occupancy allotment 208.7m2 + Number of dual occupancy allotments less than 330 m2 10 (50%) + Number of allotments with a frontage less than 15 metres 48 (53%) + Smallest frontage - non-dual occupancy 6.09 m + Largest frontage - non Department of Housing 19.812 m 15From this, Mr Nash says that whilst the majority of allotments in the locality comply with the designated minimum lot size of 450 sq m, there is also a majority that do not achieve the minimum frontage of 15m. Accordingly, he concludes that the subdivision pattern is characterised by its diversity in terms of frontage and area. 16Consequently, Mr Nash says that the key element in what is perceived by a layperson viewing the property from the street is the width of the lot for the associated dwelling. On this basis he does not consider that the 10.215m - 10.515m frontages would be inconsistent with the existing subdivision pattern. 17Mr Nash supports the subdivision application on the basis that the integrated MDD on Torrens Title would present no differently in the streetscape from the approved MDD on the single consolidated lot because the separate driveways to each dwelling are maintained, the approved 1.8m high common boundary fencing is maintained, along with the approved landscaping. Furthermore, he says it will achieve a more desirable planning outcome. 18Against this, Ms Bizimis does not consider that this application satisfies the intent of the planning controls. She says that whilst the subject application has the benefit of the savings provisions in HLEP 2012, nevertheless the objectives in this LEP, HLEP 1994 and DCP No 1 are basically the same and seek to maintain the compatibility with the surrounding lot pattern. Accordingly, the controls allow for a variety of residential forms of development in the locality, which are subject to different numerical and management considerations, to achieve this outcome. 19Ms Bizimis says that as the 2 existing lots have complying widths of 15.24m and 16m and complying areas of 594 sqm and 618 sqm, they are consistent with the current lot pattern in the locality. Accordingly, she does not support the proposed 3 - lot subdivision, which she says will result in all lots being undersized and inconsistent with the lot pattern in the locality. 20In regard to the "stepped development" process, Ms Bizimis says that the final step of the approval of the Torrens Title subdivision would result in a significantly different and undesirable planning outcome because the approved MDD development is a form categorised as "multiple dwelling development", which is defined as: multiple dwellings means a building or buildings, consisting of 3 or more dwellings (whether or not attached), where each dwelling has an individual entrance and direct private access to private open space at natural ground level, and includes villas, town houses, terraces, cluster housing, and the like. 21However, the subdivision of this MDD would consequently result in the 3 townhouses being on separate lots, which is a different form that is categorised as "dwelling houses". As such, the resultant development of separate dwelling houses on undersized lots is not consistent with the controls to allow development, which is compatible with the subdivision pattern of the locality, according to Ms Bizimis. Conclusion 22For the determination of this matter, I have carefully considered the evidence, the submissions and undertaken a view. In this regard, I note that the appeal commenced by way of a s34 Conference on-site, which was terminated and the parties agreed to my determination of the matter. 23The determination is more involved because of the applicant's "stepped process" to obtain the 3 - lot subdivision approval to retrofit the MDD. This is shown in the draft conditions tendered, which provide for a 'deferred commencement' condition enabling this outcome. 24Notwithstanding this, it seems to me that the primary focus in this matter concerns the merits of the proposed 3 -lot subdivision application. Accordingly, I understand that the relevant evaluation criterion includes the following provisions in HLEP 1994 of a minimum lot size of 450 sqm and minimum frontage of at least 15m for the erection of a dwelling. These requirements are supported in cl 3.2.2.2 of the HDCP. In this regard, different and somewhat more relaxed density standards apply for MDD. 25Insofar as HLEP 2012 has been made, it now provides for a minimum lot size area of 450 sqm as a subdivision development standard but there is no minimum frontage requirement. However, the savings clause does not result in determinative weight being given to the HLEP 2012 provisions. 26By reference to the planner's 'locality' plan of the neighbouring area, I am satisfied that the majority of lots within it exceed the 450 sqm minimum area requirement. Whilst a considerable number of the lots are below the 15m frontage requirement, they are generally spread through the locality and contain existing dwellings, thereby significantly reducing their ability for subdivision as proposed in the subject application. 27When assessing a subdivision application for residential lots, a common consideration is whether suitable dwellings could subsequently be erected on the new lots, in compliance with the other relevant controls. This often involves the consideration of notional building footprints and building sections for the new lots. 28In the subject circumstances, the approved MDD proposal is directly related to the suitability of the new lots for dwelling houses and enables this suitability consideration. Insofar as Mr Nash says that this proposal is a unique development, I nevertheless think it will present differently to the existing residential subdivision character because of: * The location of the 3 adjoining, narrow lots. * The overall uniformity of the designs of the townhouses. * The minimum side boundary setbacks, which contrast with the existing variable setbacks in the locality. 29My assessment is that the ultimate development would present more as group of buildings on smaller lots, which in Ms Bizimis opinion is not the planning outcome envisaged by the controls. In the subject context, I think that the likely outcome of 3 x 2 - storey dwellings on the subject lots would present more like other forms of higher density development rather than the predominant presentation in the locality of detached dwellings on larger lots within the locality. 30Therefore, I agree with Ms Bizimis that the proposed subdivision of the 2 existing lots into 3 non - conforming lots does not satisfactorily retain the pattern of subdivision and that it does not represent orderly development of the land. Consequently, I give diminished weight to Mr Nash's opinion that the subdivision should be approved because the streetscape and other impacts will be similar irrespective of the land title for the development. 31In support of this conclusion I note that the question of alternative title arrangements has been considered in a number of previous appeals. This includes Vescio v Manly Council [2012] NSWLEC 1098, wherein Pearson C and O'Neill C stated: 58 We accept that the difference in title if the subdivision is approved would not change the built form approved in the Townhouses appeal, and would not be discernible from any public place. However, we agree with Mr Stray that retaining a single allotment would assist in ensuring that the built form remained an integrated whole. In Brendan Howell v City of Canada Bay [2005] NSWLEC 335 Commissioner Watts commented, in the context of an application for the Torrens title subdivision of an attached dual occupancy development: 32 Also one could look to the planning consequences of an un-subdivided attached dual occupancy with one where each of the proposed new dwellings in the attached dual occupancy development are situated on a separate Torrens title lot. In the first instance the ownership would be likely to remain in the hands of a single entity and in the second each dwelling in the dual occupancy might be owned be a single entity. In the first, it is likely that the physical form of the two dwellings in an attached dual occupancy would remain as an integrated whole, as proposed, and thus appear more like a single dwelling in the street and fit in with the desired future character. In the second instance, each individual owner might seek to 'individualise' their dwelling so that each dwelling would appear different and the development complex not as an integrated whole. Thus, there is the potential for different planning outcomes in each case, as a result of subdivision. Even if the attached dual occupancy were strata titled, the building owners' corporation might exert some control over the aspirations of each of the potential individual lot owners and so keep the development as an integrated whole and one that would better fit in with the streetscape. Significant 'improvements' to each dwelling would need the approval of the owners' corporation 32Therefore, in the circumstances of this matter, I think that significant weight should be given to the DCP controls, which require a minimum subdivision lot size of 450 sqm and minimum frontage of 15m. Whilst the proposed subdivision does not comply with these controls, there is an additional control in cl 3.2.7 of the DCP, which deals with "subdivision title". Clause 3.2.7.2 - "Torrens Title Subdivision" states: Allotments where dwelling houses or dual occupancy dwellings are proposed or exist are permitted to be Torrens Title. Residential flat buildings and multiple dwellings are not suitable for Torrens Title (my emphasis). 33According to Ms Bizimis, this is to maintain overall control of the multiple dwelling developments in some form of owner's corporation, rather than allowing separate owners to individually alter the overall development in the future. She expressed particular concern about the retention of the uniformity of the common front setback areas. This is to achieve the aims of orderly development for the various forms of residential development, considering the concessions allowed in site area for residential development not categorised as 'dwelling houses'. In the absence of any compelling evidence against this DCP provision on "subdivision title", I give it significant weight. Accordingly, the proposal is non - compliant. 34In this regard, I have also considered the submissions regarding consistency in decision making and the DCP provisions being the focal point for decision-making set out in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 and Zhang v Canterbury City Council [2001] NSWCA 167. Also, Stocklands Development Pty Ltd v Manly Council [2004] NSWLEC 472 where McClellan CJ examined the role and weighting for DCP provisions. Accordingly, I give determinative weight to the DCP provisions, resulting in the failure of the subdivision application. 35Apart from this, I note that a SEPP 1 Objection to the development standard in cl 11 of HLEP 1994 was initially lodged with the application. However, I accept Mr Cotton's submission that it is not relevant because it does not apply to the subject subdivision application, instead it applies to the minimum lot size for a dwelling house and it is not a development standard for a subdivision. 36In summary then, I consider that the proposed subdivision application when considered alone, does not merit consent because all of the three lots are deficient in area and frontage and the proposal is not consistent with the subdivision requirements for MDD stated in the DCP. Whilst the MDD is a separate matter, nevertheless the applicant's case is to effectively retrofit the MDD to the subdivision proposal. I rely on the opinion of Ms Bizimis that this outcome would result in an unsatisfactory change in the categorisation of the ultimate development, which does not satisfy the orderly development aims. 37Furthermore, cl 8 of the HLEP 1994 contains the zone objectives and cl 8 (3) requires council to be satisfied that any consent should be consistent with the zone objectives. I do not consider that the granting of consent to this 3 - lot subdivision on the basis submitted by the applicant will preserve and enhance the character and amenity of the established residential area in which the development is proposed. For the aforementioned reasons, the proposed subdivision should be refused in my assessment. Court orders 38The Court orders that (1)The appeal is dismissed. (2)Development consent for DA 11/DA - 283 for a 3 - lot Torrens Title subdivision of Lots 12 and 13 DP 35316 Loader Avenue, Beverly Hill is refused. (3)The exhibits be returned except 1, 2 and A. R Hussey 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: 08 February 2013