Carbone v Camden Council [2015] NSWLEC 1161

Land and Environment Court New South Wales

Medium Neutral Citation: Carbone v Camden Council [2015] NSWLEC 1161 Hearing dates: 19 & 20 March, 2015 Decision date: 19 May 2015 Jurisdiction: Class 1 Before: Smithson AC Decision: 1. The appeal is upheld. 2. Development Application DA 487/2014 for subdivision of 4 residential lots and associated site works at 25 Elizabeth Macarthur Avenue, Camden South be approved subject to the conditions at Annexure A. 3. That the exhibits be returned other than Exhibits 1 and 5 and the Supplementary Index to Exhibit B. Catchwords: DEVELOPMENT APPLICATION – Subdivision in established residential area, building envelopes, lot dimensions, setbacks, character of area, tree removal, private open space, visual and acoustic privacy, use of section 88B instrument Category: Principal judgment Parties: Mario Carbone (Applicant) Camden Council (Respondent) Representation: Counsel: Mr T Hale (Applicant) Mr C Drury (Respondent)

Solicitors: Barclays Law Group (Applicant) Sparke Helmore (Respondent) File Number(s): 10922 of 2014

Judgment

Introduction 1. This is an appeal against refusal by Camden Council of Development Application 487/2014 (DA) for a subdivision to create 4 residential lots and associated site works at 25 Elizabeth Macarthur Avenue, Camden South ("the site"). 2. The proposed subdivision would create 4 Torrens title lots ranging in size from 600m² to 924m², with nominated building envelopes on three of the lots (proposed Lots 50, 51 and 52) and retention of an existing house on the fourth lot (Lot 53), relocation of an existing driveway, and associated works. Up to 2 trees would be required to be removed to facilitate the subdivision and potentially a further 6 trees to facilitate subsequent development of dwellings within the nominated building envelopes. A total of 23 trees would be retained. 3. The site is located on the south east corner of Elizabeth Macarthur Avenue and Bowman Avenue in an established residential area referred to as the Elizabeth Macarthur Estate which is in close proximity to two significant heritage items: Camden Park and Belgenny Farm. The site is identified as Lot 156 DP 31361 and has frontages of 36.12m to Elizabeth Macarthur Avenue and 54.4m to Bowman Avenue with an overall area approximating 2,879m². The site currently contains a single storey dwelling and carport (accessed from Bowman Avenue) as well as 26 mature trees. 4. The Elizabeth Macarthur Estate is characterised by low density residential development of one to two storey dwellings. Historically, dwellings have been well set back from the street in landscaped settings although infill development has more recently occurred in a number of locations with dwellings on reduced setbacks and site areas. 5. Development of the site is subject to the provisions of the Camden Local Environmental Plan 2010 ("CLEP"), in particular the following: Clause 2.6 - Subdivision requires consent Clause 4.1 - Minimum Lot size Clause 5.9 - Preservation of Trees or Vegetation Clause 7.4 - Earthworks 1. Development is also guided by the Camden Development Control Plan 2011 ("CDCP") which has a number of controls relating to development covering factors such as tree retention and landscape design, as well as subdivision requirements, including subdivision in established residential areas. 2. It was the contention of Camden Council that there were several areas of non-compliance with the CDCP warranting refusal of the application as follows: 1. One of the lots (proposed Lot 50) has a depth of 22.2m and an area of 639m² whereas the CDCP requires a depth of 27m and, if the lot is deemed to be irregular in shape, a required minimum area of 700m². 2. The nominated building envelopes for two of the lots (proposed Lots 50 and 51) have a 9m front setback from Bowman Avenue whereas the CDCP requires a front setback to be the average of the setbacks of the nearest 2 dwellings which is determined by the Council to be 13.3m from Bowman Avenue. 3. The CDCP requires a minimum side setback for buildings of 900mm. The carport of the existing dwelling to be retained on proposed Lot 53 would have a zero side setback from the eastern boundary whilst the existing dwelling on the same lot has a covered area within 700mm of the side boundary. 1. The DA was placed on public notification and six submissions were received, all objecting to the proposed development. One submission was later withdrawn. At the hearing, three adjoining residents all raised objections to the development principally on the basis that the proposed subdivision was out of character with the prevailing and historic character of the Elizabeth Macarthur Estate and would facilitate dwellings with setbacks closer to the street than was characteristic of the area, result in the loss of trees, and create additional parking demand and traffic in the area. 2. The Applicant was required by the Council to nominate building envelopes for each of the undeveloped lots. The Applicant initially objected to this requirement stating building envelopes were only required to be provided under the CDCP for lots under 450m² in that building envelopes are only specifically referenced in the CDCP at section C4 part 5 which states in part: "The following controls apply to building envelopes for residential lots under 450m²..". A number of design criteria for the building envelopes so nominated are then specified but are not relevant to this appeal. 3. In response, the Council referenced objective 3 of CDCP section C4 - Subdivision in Established Residential Areas which states: "Lot sizes shall be adequate to provide setbacks, maintain site features and provide a useable building space and a pleasant living environment'. In the Council's view, building envelopes needed to be nominated to demonstrate compliance with this objective in order for the Council to determine the potential impacts not only of the subdivision but of the likely future development of dwellings on the resultant lots in terms of tree loss and adverse impacts to residents of the future dwellings, neighbours and the streetscape. Accordingly, the application would likely be refused if building envelopes were not nominated. In response, the Applicant submitted a building envelopes plan and an Arborist's report dealing with tree loss. 4. The Council refused the DA on the following grounds: 1. Non-compliance with Council's DCP in relation to the lot depth and setbacks. 2. Not in keeping with the character of the area due to the proposed lot size. 3. The site is the gateway to two major heritage items, namely Camden Park and Belgenny Farm. 4. The proposed development is not part of the Growth Centres. 1. During the hearing, expert Planning advice was given by Mr Chris Weston for the Applicant and Mr Vince Hardy for the Respondent whilst Aborist's evidence was provided by Mr Warwick Varley for the Respondent. 2. The expert Planners redefined the grounds for refusal into seven Council areas of concern as follows: 1. Minimum lot size 2. Minimum lot depth 3. Front setbacks 4. Scale, density and character of development 5. Provision of suitable open space 6. Provision of suitable visual and acoustic privacy 7. Removal of trees.