Kamateros v Murray Shire Council [2013] NSWLEC 1166

Land and Environment Court New South Wales

Medium Neutral Citation: Kamateros v Murray Shire Council [2013] NSWLEC 1166 Hearing dates: 15 August 2013 Decision date: 15 August 2013 Jurisdiction: Class 1 Before: Moore SC Decision: (1)The appeal is dismissed. (2)Development Application 214/12 for subdivision of Lot 77 DP 1050525 (39 Aberdeen Way, Moama) into two allotments is determined by the refusal of development consent. (3)The exhibits, other than exhibits A, B and 3, are returned. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Murray Development Control Plan 2012 Murray Local Environmental Plan 2011 Cases Cited: Hornsby Shire Council v Malcolm [1986] 60 LGRA 429 Category: Principal judgment Parties: J and M Kamateros (Applicants)

Murray Shire Council (Respondent) Representation: Mr W Horsfall (agent) (Applicants)

Mr A Brickhill solicitor (Respondent - submitting appearance except as to costs) Kell Moore (Respondent) File Number(s): 10375 of 2013

Judgment 1SENIOR COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Murray Shire Council (the Council) of a development application for a two lot subdivision on the northern outskirts of Moama. 2At the commencement of the proceedings, leave was granted to Mr Horsfall to appear as agent for the applicants in the proceedings, that leave being granted pursuant to s 63 of the Land and Environment Court Act 1979 after I was satisfied that the appropriate disclosures pursuant to r 7.7 of the Land and Environment Court Rules had been made to the applicants in the proceedings. 3The proceedings commenced, as is customary in development appeals, on site with an inspection of the existing allotment proposed to be subdivided. There is nothing remarkable about the site, save that it is an existing suburban allotment of 1,057 m² in an estate known as The Highland Estate on the northern outskirts of Moama, an estate that has been developed in stages and is perhaps, at least as far as this stage is concerned, some ten to twenty years old. 4During the course of the site inspection, I heard evidence given informally by Ms Spiteri, a neighbour on the northern side of the allotment proposed to be subdivided. Ms Spiteri is from one of four households who had lodged objections to the original development application and she was the sole objector to have repeated her objection by asking that it be considered in the same terms during the review process undertaken pursuant to s 82A of the Act. 5The subdivision application as originally proposed to the Council provided for two allotments, generally one to the north and one to the south within the existing parcel of land. The original proposal had an allotment of 594 m² to the north and 462 m² to the south according to the survey plan. Where the additional square metre went to I am unable to determine. 6The proposal is now, in essence, flipped - proposing a 493 m² allotment to the north and a 564 m² allotment to the south (the missing square metre having been found and added back into the equation). 7The officer's assessment of the development application that was submitted for consideration by the Council on 5 February 2013 found that the proposal was generally compliant and, in particular, was compliant with the relevant provisions of ch 7 of Murray Development Control Plan 2012 (DCP 2012). 8Notwithstanding the officer's recommendation at the Council meeting on 5 February 2013 Council resolved by majority to refuse the application on the following reasons: (1) The proposed development is considered to be inconsistent with the objectives and controls of s 7.1, the `Neighbourhood Character' of Murray Development Control Plan (DCP) 2012, as the proposed character is not considered to be consistent with the existing character of the neighbourhood within the vicinity of the development. (2) The proposed development is considered to be inconsistent with the objectives of s 7.8 `Movement Network' of Murray DCP 2012, as the development will create additional conflict and safety issues between vehicles, cyclists and pedestrians. (3) The proposed development is considered to have unreasonable impacts in respect to additional traffic and parking in the vicinity of the development. 9As I have earlier noted an application was made pursuant to s 82A of the Act for a review of this decision. That review was carried out and the matter was put before the Council again at an ordinary meeting on 19 March 2013 where the Council unanimously resolved that: Council reaffirm its previous decision on this matter, noting further comments on manoeuvrability and access issues on the road reserve. 10The applicants then appealed to the Court. I should interpolate, at this time, that the minimum allotment size required in the residential zone within which this allotment is located is 450 m² under Murray Local Environmental Plan 2011, and that the proposal is permissible with development consent. 11After the appeal was commenced, the Council filed a Statement of Facts and Contentions that raised two contentions as bases upon which the application should be refused. They, in effect, replicate the first two grounds of the original motion of refusal that was passed by the Council in February 2013. I need not at this stage repeat them in their entirety. 12The position then arose that, entirely outside my experience in now nearly twelve years on the Court, the Council filed what is known as a submitting appearance; that is, the Council having contended that the application should be refused, determined not to act as an active contradictor in the proceedings. That has led to the matter being dealt with today in a somewhat unusual fashion; a matter to which I will return later. 13After the site inspection, we returned to the Moama Court. 14At the site inspection, however, Mr Brickhill, who had appeared for the Council on the basis of providing assistance as necessary in response to the Council's duties as a model litigant, had informed me during the course of the site inspection that there was an earlier subdivision consent that had been approved that involved not merely the allotment that is the subject of these proceedings, but also the allotment immediately to the north. That consent would have involved an amalgamation and re-subdivision - it being more than a mere minor boundary adjustment - to create a single very large allotment of some 1,600 or 1,700 m² to the north, and a 600 m² allotment to the south out of the two existing allotments, both of which are in excess of 1,000 m². 15That subdivision consent having been granted has not been activated in any fashion. I have concluded that, although there might be unusual legal consequences arising, that it does not act in any way to prevent me determining the application that is currently before the Court. 16As a consequence of having been informed of that subdivision, and provided with the appropriate material by the Council, it became necessary for me to proceed and deal with the matters that remain in contention. 17Because the Council was not acting as an active contradictor, contrary to the normal position that applies, I considered it appropriate to take the opportunity to read Mr Horsfall's written submissions, that he had thoughtfully provided to me, over the luncheon adjournment and to indicate to him prior to adjourning that I would tell him matters that were of concern to me. 18I did so because the absence of both an active contradictor and the joining of any expert evidence on this matter meant that there was not, in effect, any active debate on the matters that were contained in the Council's contentions. 19I indicated that the contention with respect to traffic and parking, when we resumed after lunch, was not a matter that required to detain Mr Horsfall at any length, but that I was concerned about the matters that arise from ch 7 pt 7.2 'Neighbourhood Character' in the DCP 2012, that being the matter that was the subject of the first of the contentions raised by the Council. 20It is convenient at this time, given that I indicated that I was not concerned about the matters relating to the movement network, to deal with them and put them out of the way. 21Although a number of the objectors raised issues about additional traffic and pedestrian safety both in the context of the nature of the access to the property. This is by way of an indentation off the outer edge of a rightangled bend on Aberdeen Way, that would service three dwellings in addition to the public access laneway leading immediately to the north and adjacent on the eastern side of the property immediately to the north of the application site. Such servicing would, if the subdivision were to be permitted, involved the likely addition of two additional vehicles with, perhaps on Mr Horsfall's submission, eight vehicle movements per day. Even if it were to be double that at sixteen movements per day, this is a comparatively insignificant number of additional movements in what is otherwise an adequately constructed residential street layout with significant view lines in all directions. 22Although, on Ms Spiteri's evidence on site, there was significant pedestrian and cyclist traffic along the access way leading to the north that was used by people in the neighbourhood for recreational purposes, the likely additional traffic, even if it were double the level postulated by Mr Horsfall, would not, assuming reasonable care and diligence by drivers obeying the law, as I am obliged to assume, create any unsatisfactory safety impacts concerning vehicle, cyclist or pedestrian movements. 23There would be no unreasonable impact on parking available within the vicinity of the development, given that all that could be constructed or expected to be constructed reasonably on the two lots, if they are to be permitted, would be a single dwelling rather than some activity of a greater intensity. 24Of greater concern to me is the compliance with the neighbourhood character provisions in the Development Control Plan. The first two objectives are said to be relevant to these proposals. The first is an objective to create urban places with identity and character, and, the second is to design subdivisions that are consistent and compatible with existing development in the neighbourhood. 25I indicate, immediately, that I see nothing arising out of the first of those objectives with which the present proposal has any possible inconsistency. That is an objective of a broad nature more akin to the sort of issue that would be considered in the development of a much larger estate or subdivision than is being dealt with in these proceedings. 26However, the second of the objectives, to design subdivisions that are consistent and compatible with existing development in the neighbourhood, is one that is engaged, as I indicated to Mr Horsfall, by this application. 27There are, in the Development Control Plan, four controls that are then called up by those objectives. The second to fourth of those controls are irrelevant to this application, however the first is directly relevant to it. That control is in the following terms: Subdivision to be generally consistent with the theme and character of adjoining development relating to the same land use. 28In Mr Horsfall's original written submissions, he had undertaken a broad analysis of how that control would be regarded as satisfied in the context of the totality of the relevant part of The Highland Estate subdivision. 29As I have some reservation about that approach, and again in the circumstances where there was no active contradictor role being performed by the Council, I drew Mr Horsfall's attention to the decision of the Court of Appeal in Hornsby Shire Council v Malcolm [1986] 60 LGRA 429 where the President of the Court of Appeal Kirby P said at p 433 that "the word adjoins is to be given a wider meaning, and use of the word did not require in a contemporary context geographic contiguity". 30It was however on my understanding, as I explained it to Mr Horsfall, something that was much more confined than a broad analysis of the subdivision of the nature that he had undertaken, and which was demonstrated by a plan that he had attached to his written submissions and which was tendered as exhibit D (reproduced below). 31This plan shows the pattern of the twenty or so allotments at that stage of The Highland Estate development. It shows in the immediate vicinity of the allotment that is the subject of these proceedings, that the adjacent allotments are to the south of 736 m², diagonally across the elbow in Aberdeen Way of 767 m², immediately to the north of the site of 1,175 m², and diagonally across the access portion off the elbow of 897 m². 32I provided Mr Horsfall with an opportunity to consider those matters and to make further oral submissions about how I should be satisfied that the subdivision would be generally consistent with the theme and character of adjoining development relating to the same land use, the allotments to which I have adverted all being within the same residential estate. 33Mr Horsfall took me through, as I understood his submissions, how I should, in his submission, regard that which is proposed as being consistent with the theme and character on the basis of a number of ways of examining that. They being: * The relevant area of the proposed allotments; * Set-backs from the street; * Frontages to the street; * The likely style of dwelling that would be erected on a subdivided allotment; * Access from the street 34As a consequence based on all of those factors and his analysis of them, I should conclude that permitting the subdivision of this allotment into two would result in no inconsistency with the theme and character of the adjoining development. 35The matters that he raises with respect to set-backs from the other frontages of the existing dwellings, I am satisfied would be able to be sufficiently replicated for dwellings that would be erected, with the minimum a hundred square metre floor plate provided for by a covenant that will remain applicable to the sites, and that the set-backs do not act as any barrier to the approval of the subdivision. 36I do not for that reason need to undertake a detailed analysis of the matters that he took me to, save to note that his analysis took me to all four of the relevant allotments in a fashion that makes it clear to me that consistency could or was likely to be achieved. 37Secondly, with respect to frontages, it is clear to me from his submissions and from an examination of exhibit D, that the resultant frontage proposed for the more southern of the two proposed allotments would be, although at a different angle to the frontage of its adjoining allotment to the south, generally consistent with the width of that frontage whilst the frontage of the proposed more northern allotment, although again at a different angle to the frontage of the allotment immediately adjacent to north, would be generally consistent with its frontage. 38There would therefore, in my view, be nothing inconsistent with the general rhythm or pattern in the streetscape of the frontages in those circumstances if the subdivision were to be approved. 39Equally, I am satisfied that the likely style of buildings would be ones that would be generally consistent with the nature of the surrounding development in that it is probable, sufficiently probable to be regarded as a basis for a conclusion in these proceedings, that there would be single level detached dwellings set-back in a consistent fashion from the street, and that that, although there would necessarily be a diminution of the space, private open space in the rear because of the smaller size of the allotments, would not be out of character with the adjoining development when viewed from the streetscape. 40Similarly the question of access would be by driveway across the small access space that is currently provided for in the elbow of Aberdeen Way. It would be sufficiently consistent with the present access to Lot 78, immediately to the north, not to stand as a impediment. 41It leaves me with the single remaining matter that is of major concern to me, and in the final analysis, despite the other significant elements of consistency, leads me to the conclusion that the application must fail. That relates to the allotment size. 42The present allotment sizes of the surrounding allotments, as I have indicated, are between 767 m² and 1,175 m². The allotments that are proposed to be created by this subdivision will be 493 m² to the north and 564 m² to the south. The degree by which they are inconsistent with the surrounding development is not something of a mere minor percentage, it is of the order of twenty-five per cent plus for the larger of the allotments, or of that order, and somewhat more for the smaller of the allotments. 43It would be entirely out of character with the adjoining development, to use the word of the Development Control Plan, on this basis. The allotment size is a major determinant of the present character of the subdivision, it is something that has set the overall tone of the nature of the development in the vicinity. Although on a number of factors, as Mr Horsfall has persuasively put it, there is consistency, I cannot be satisfied that the proposed development would be consistent with the theme and character of the adjoining development as represented by its allotment size if I were to approve it. 44The consequence of that is the orders must be that: (1)The appeal is dismissed. (2)Development Application 214/12 for subdivision of Lot 77 DP 1050525 (39 Aberdeen Way, Moama) into two allotments is determined by the refusal of development consent. (3)The exhibits, other than exhibits A, B and 3, are returned. Tim Moore 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: 02 September 2013