Land and Environment Court New South Wales Medium Neutral Citation: Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2015] NSWLEC 1077 Hearing dates: 18 March 2015 Date of orders: 01 April 2015 Decision date: 01 April 2015 Jurisdiction: Class 1 Before: Pearson C Decision: 1.The appeal is upheld. 2.Development application DA/755/2013 for the subdivision of land at Lot 11 Section 1 DP 1026 and Lot 12 Section 1 DP 1026 known as 35 Orchard Street and 13 Mars Street Epping respectively is approved subject to the conditions in Annexure A. 3.The exhibits are returned except for exhibits A, B, 1 and 5. Catchwords: DEVELOPMENT APPLICATION – Subdivision – Boundary adjustment – Property subject of existing use rights Legislation Cited: Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2011 Cases Cited: Parrott v Kiama [2004] NSWLEC 77 Category: Principal judgment Parties: Uniting Church in Australia Property Trust (NSW) (Applicant) Parramatta City Council (Respondent) Representation: Counsel: Solicitors: Mr G McKee, McKees Legal Solutions (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 10934 of 2014 Judgment 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to development application DA/755/2013, which as lodged sought approval for the relocation of a subdivision boundary and expansion and construction of a carpark ancillary to an existing youth centre and church at 35 Orchard Street and 13 Mars Street Epping (the site). 2. The development application was amended in the course of its consideration by the Council to seek approval for the boundary adjustment only. The application was lodged in the name of "West Epping Uniting Church" with the consent of the owner of the site, the Uniting Church in Australia Property Trust (NSW). At the commencement of the hearing an order was made pursuant to s 64 of the Civil Procedure Act 2005 to substitute the name of the owner as applicant in these proceedings. 3. West Epping Uniting Church (the Church) is located at 161 Carlingford Road Epping, on the corner of Carlingford Road and Orchard Street. The adjoining lot, Lot 11 Sec 1 DP 1026 (35 Orchard Street), is used by the Church as a youth centre on Sundays and during the week. There is a hardstand parking area at the rear of that lot accessed by a driveway from Orchard Street. The Church also owns Lot 12 Sec 1 DP 1026 (13 Mars Street), which has a common boundary with the rear of 35 Orchard Street. The development application seeks to subdivide Lots 11 and 12 to transfer approximately 336 sqm of land from Lot 12 to Lot 11. Background to application 1. The use of an existing cottage at 35 Orchard Street as a youth centre and activities centre for senior citizens in association with the Church at 161 Carlingford Road was approved by the Council on 13 November 1978. It was common ground that that use for church related activities is now prohibited and continues as an existing use. The property at 13 Mars Street has a dwelling, and is the subject of a development application presently being considered by the Council for a dual occupancy development. 2. The development application DA/755/2013 sought approval for the carrying out of works in two stages. The first stage was the relocation of the existing boundary so that 35 Orchard Street would acquire the corresponding rear portion of 13 Mars Street, approximately 336sqm. The existing and proposed dimensions and areas of 35 Orchard Street and 13 Mars Street are as follows: Property Existing area Proposed area Existing depth Proposed depth Existing width Proposed width 35 Orchard Street 1,006 1,340.86sqm 54.96m 73.31m 18.29m 18.29m sqm 13 Mars Street 1,002 666.79sqm 54.73m 36.44m 18.29m 18.29m sqm 1. The second stage involved the expansion of the carpark located at the rear of 35 Orchard Street onto the unused portion of land resulting from the proposed boundary relocation. The proposed carpark, to provide an additional 12 car spaces, was to be used by both the youth centre and the adjoining West Epping Uniting Church. 2. As noted above, the application was amended so as to be for the boundary adjustment only. Issues 1. The Council contends (contention 5) that the application should be refused because the amended application does not nominate a use for the boundary adjustment, the proposed development will not achieve the orderly development of land and thereby fails to comply with the objectives of the Act, and the boundary adjustment expands a lot containing a prohibited use and any purpose relating to the use cannot be reasonably ascertained. The Council further contends (contention 6) that the application should be refused because the additional land will retain its R2 zoning in circumstances where the "existing use" provisions do not extend to that portion of the land, and the land is in effect isolated with no direct access to a street and will not be able to be developed because it is undersized; and contends (contention 7) that the application should be refused because approval is not in the public interest. 2. In its Statement of Facts and Contentions (exhibit 1) the Council raised four other contentions relating to the proposed car parking use; those contentions are no longer relevant as a consequence of the amendment of the application and are not pressed. Planning controls 1. Both sites are in the R2 Low Density Residential zone under the Parramatta Local Environmental Plan 2011 (the LEP). The objectives of that zone, to which regard must be had under cl 2.3(2) of the LEP, 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 ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment. • To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods. 1. Development for the purpose of home occupation is permissible without consent. Development for the following purposes is permissible with consent: Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Community facilities; Dual occupancies; Dwelling houses; Educational establishments; Emergency services facilities; Environmental facilities; Environmental protection works; Exhibition homes; Exhibition villages; Flood mitigation works; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Hospitals; Hostels; Neighbourhood shops; Public administration buildings; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Roads; Seniors housing; Water recycling facilities. 1. Any other development, including development for the purpose of a place of public worship, is prohibited. 2. Under cl 2.6 land to which the LEP applies may be subdivided with consent. Clause 4.1 provides for minimum subdivision lot sizes. The objective of the clause is "to ensure that new subdivisions reflect characteristic lot sizes and patterns of the area". The minimum lot size specified under cl 4.1(3) in the Lot Size Map for the two sites is 550sqm. Clause 4.1(4A)(a) provides that the size of any battleaxe lot or other lot with an access handle must be not less than 670sqm. Clause 4.1(4B) provides: (4B) Subclause (3) does not apply to the subdivision of a lot in any of the following zones if there is a dual occupancy on the lot and one dwelling will be situated on each lot resulting from the subdivision: (a) Zone R2 Low Density Residential, (b) Zone R3 Medium Density Residential, (c) Zone R4 High Density Residential. 1. Clause 6.11 provides: 6.11 Dual occupancies on land in Zones R2, R3 and R4 (1)Development consent may only be granted to development for the purpose of a dual occupancy on a lot in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone R4 High Density Residential if the lot has an area of not less than 600 square metres. 1. In 2013 the Council made a number of housekeeping amendments to the LEP. The Planning Proposal documents are in evidence (exhibit 3 tab 18). One of the housekeeping amendments was to zone existing places of public worship located in the R2 zone to SP1 (Place of Public Worship), and the Church at 161 Carlingford Road is now zoned SP1. The Council officer's assessment report for this development application (exhibit 3, tab 15) notes (at p 62) that the Council has been requested to incorporate the land at 35 Orchard Street as a Special uses zoning in any upcoming housekeeping amendments, which "would be more in keeping with the current practice of appropriately zoning existing places of public worship". 2. Parramatta Development Control Plan 2011 applies. The relevant provisions are in section 3.7 Residential Subdivision: 3.7 Residential Subdivision 3.7.1 General Objectives O.1 To ensure that subdivision of land for residential development has regard to site opportunities and constraints. O.2 To ensure that subdivision respects the predominant subdivision pattern of the locality. O.3 To ensure that allotments of sufficient size are created to facilitate development that meets the requirements of this plan. … Design Controls Dwelling Houses C.1 Lots with direct road frontage require: A minimum site area of 550m2 and a minimum frontage of 15m where it is proposed to erect a dwelling house on the allotment. C.2 Battleaxe lots require: A minimum site area of 670m2 (not including the access corridor) and a minimum access corridor width of 3.2m where it is proposed to erect a dwelling house. NOTE: Multiple subdivision of battleaxe lots is strongly discouraged. Dual Occupancy C.3 A minimum site area of 600m2 and a minimum frontage of 15m (or 12m for 2 street or street/lane frontages) is required where it is proposed to erect a dual occupancy on the allotment. C.4 For the subdivision of dual occupancies, equal or similar proportions in site area are to be provided for each dual occupancy lot and a minimum frontage of 7.5m provided for each dwelling resulting from the subdivision of the dual occupancy. Evidence 1. The hearing commenced on site with a view. 2. Expert planning evidence was provided on behalf of the applicant by Mr Andrew Minto, and on behalf of the Council by Mr Stanley Fitzroy-Mendis. 3. In his contribution to the joint report (exhibit 4) Mr Minto stated that 13 Mars Street has a current area of 1,002sqm meaning that approximately 400sqm is surplus land for the current dual occupancy application which requires a minimum allotment size of 600sqm; the Church intends to sell the dual occupancy development. The proposed boundary adjustment provides the Church with a number of options for the orderly and economic development of the resulting allotment, including continuing the existing use of the site and the "land banking" of the residual land for future use; continuing the existing use within the existing built form or a modified built form together with the incorporation of a use permitted with consent on the land; cessation of the existing use and a compliant two lot Torrens title subdivision of the land; or cessation of the existing use and the carrying out of a use permitted with consent on the land. 4. In Mr Minto's opinion numerous options exist for the future use of the subject site, and consistent with adopted planning processes it is not necessary to identify the future use of the land at this time. In his opinion it is appropriate for a consent authority in granting approval for a subdivision to be satisfied that the resultant allotments are capable of being utilised for a purpose permitted on the land and in accordance with the objectives of the zone and any applicable prescriptive requirements by the Council. He considered that not allotments are relatively constraint free and are capable of supporting the range of development permissible within the subject zone. 5. Mr Fitzroy-Mendis agreed with Mr Minto's statements of general principle, however he could not conclude that both sites would be relatively constraint free without an understanding of the proposed use for 35 Orchard Street. In his opinion the consent authority would have difficulty assessing the impacts of the subdivision involving two lots with two different land uses one of which may be non-residential and a non-conforming use to the zone, and there is no certainty in assessment. The development options proposed by Mr Minto as a consequence of contemplating the subdivision in isolation of use for one of the lots illustrate the uncertainty faced by the consent authority in assessing the impacts of the proposed subdivision on both lots, compounded by the non-conforming use of one of the lots. 6. Mr Minto did not consider that the land to be transferred would be in effect isolated. The whole of the land, existing and proposed, is zoned R2; the existing use could be abandoned at any time and a separate application made for a use permitted with consent on the land, or a possible future application could be made for continuation of the existing use in an altered built form which could seek to incorporate a permitted use on the site; and the proposal seeks to create two consolidated street front allotments each of which will have an area greater than the minimum requirements of the Council. Mr Fitzroy-Mendis stated that without certainty on the purpose of the subdivision for both lots, the consent authority could not properly assess the impacts of development, and that as long as the non-conforming use continues it must be contained within the boundaries of 35 Orchard Street. 7. In oral evidence Mr Minto and Mr Fitzroy-Mendis agreed that if the application is approved Lot 12 (13 Mars Street) would have an area of 666.79sqm which would permit a dual occupancy (attached development), and that Lot 11 (35 Orchard Street) would have an area of 1,340.86sqm which would comfortably permit a dual occupancy development at the rear and a dwelling at the street frontage. Mr Minto accepted that Lot 11 would be larger in area and longer than other allotments in the area, however in his opinion the variation was not of such a concern as to be inconsistent with the subdivision pattern. In his opinion it is likely that the transferred land would be used as private open space for any future development. 8. The Council's bundle of documents (exhibit 2) includes a copy of an objection received by the occupant of a strata development at 167 Carlingford Road, which adjoins the rear boundary of 13 Mars Street, raising concerns about the proposal to increase the number of car parking spaces. Consideration 1. The applicant submits that the proposed subdivision is permissible with consent pursuant to cl 2.6 of the LEP, and there is no requirement in the Act or the planning controls that the prospective use be identified. In this instance the land is capable of being sensibly developed for a use permissible in the R2 zone. The applicant submits that it is in the public interest to approve the application because it is consistent with the planning controls, and facilitates future development of the land consistent with the zone. 2. The Council submits that the application is premature. The transfer of 336sqm to 35 Orchard Street would not constitute orderly development because that land could not be used for the church related existing use and is too small to be used for any purpose permissible in the zone. There is no approval for the dual occupancy development on 13 Mars Street and so the proposition that the land is surplus to that site should be given little weight. The absence of information as to how the land would be used makes it difficult to assess, and there needs to be an understanding of what the land would be capable of being used for. The need for a barrier between the car parking area and the transferred land suggests that the subdivision is not appropriate. 3. It was not in dispute that if the application is approved the resulting lots would both meet the minimum lot size specified in cl 4.1(3) of the LEP, and that the additional 336sqm of land transferred to 35 Orchard Street could not lawfully be used for church-related uses that are the subject of the existing use rights for that lot. The applicant accepts the imposition of a condition that that land not be used for car parking, and a condition requiring it to erect a barrier between the present hardstand car parking area and that additional land. 4. The proposed resulting allotments would meet the numerical requirements of cl 4.1 of the LEP and section 3.7.1 of the DCP for subdivision for dwelling houses and dual occupancy development, and on that basis I am satisfied that the proposal would meet objective O3 of ensuring that allotments created are of sufficient size to facilitate development that meets the requirements of the DCP. While the subdivision would create an allotment that at 1,340.86sqm and 73.31m would be larger in area and deeper than other allotments in the locality, having regard to the aerial photograph in evidence (exhibit 2) it would be consistent with the subdivision pattern of the immediate area and not significantly different to other lots, including those fronting Carlingford Road. I am satisfied that the proposal would be consistent with objective O2 of section 3.7.1 of the DCP. 5. The central issue is whether this subdivision application can be properly assessed where there is no use presently proposed for the 336sqm of land that would be transferred. There is no provision in the LEP or the DCP that would require identification of a prospective use for a subdivision permissible under cl 2.6 of the LEP. The planning principle in Parrott v Kiama [2004] NSWLEC 77 provides that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them. That is not the position in this application, where no such constraints are identified. 6. I accept Mr Minto's evidence, with which Mr Fitzroy-Mendis agreed in general terms, subject to his comment about uncertainty, that the issue is whether the resultant lots are capable of being utilised for a purpose permitted on the land in accordance with the objectives of the zone and requirements of the Council. Based on the agreed planning evidence, I am satisfied that some form of residential development would be possible on 35 Orchard Street consistent with the provisions of the present R2 zoning and the DCP requirements, in the form of a dual occupancy development and a dwelling house, if the existing use is abandoned. If the existing use continues, the provision of a barrier as proposed in condition 4A would prevent the unauthorised use of the transferred land for parking or other church-related uses not permissible in the R2 zone. That would meet the concerns of the objector relating to noise. It is not necessary in my view to speculate as to whether 35 Orchard Street may be rezoned to Special Purpose, so that the existing use would become a permissible form of development. Any development application for a use other than that presently permissible either under existing use rights or in accordance with the provisions for the R2 zone or a possible future Special Purpose zoning would need to be assessed on its merits, including an assessment of any impacts on the locality. Having regard to the range of possible options for future development of both 13 Mars Street and 35 Orchard Street as foreshadowed by Mr Minto, I agree with the applicant that the proposal does promote the orderly and economic development of land in a manner that is compliant with the provisions and objectives of the applicable planning controls. 7. The orders of the Court are: 1.The appeal is upheld. 2.Development application DA/755/2013 for the subdivision of land at Lot 11 Section 1 DP 1026 and Lot 12 Section 1 DP 1026 known as 35 Orchard Street and 13 Mars Street Epping respectively is approved subject to the conditions in Annexure A. 3.The exhibits are returned except for exhibits A, B, 1 and 5. Linda Pearson 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: 01 April 2015