Land and Environment Court New South Wales Medium Neutral Citation: De Clouett v Wollongong City Council [2016] NSWLEC 1041 Hearing dates: 28 January 2016 Date of orders: 10 February 2016 Decision date: 10 February 2016 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: subdivision, new dwelling house, impact on amenity and character Legislation Cited: Wollongong Local Environmental Plan 2009; State Environmental Planning Policy No 55 - Remediation of Land; State Environmental Planning Policy No 71 - Coastal Protection; State Environmental Planning Policy (Building Sustainability Index BASIX); Texts Cited: Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Christian De Clouett Melissa De Clouett (Applicants) Wollongong City Council(Respondent) Representation: Counsel: Mr I Hemmings SC (Applicants) Solicitors: Mr P Rosier Rosier Partners (Applicant) Mr J Reilly Wollongong City Council (Respondent) File Number(s): 10798 of 2015 Judgment 1. This is an appeal against the actual refusal by Wollongong City Council of Development Application DA – 2014/2454 proposing subdivision and the construction of a new dwelling house in two phases, phase 1 involving minor demolition, geotechnical remediation works and a two lot Torrens Title subdivision and phase 2 involving the construction of a new dwelling house at No 2 Broadridge Street Wombarra. 2. The issues between the parties have been resolved and they are seeking consent orders from the Court. The site and its context 1. The legal description of the site is Lot 4 in DP 1094807, otherwise known as 2 Broadridge Street, Wombarra. The site is located on the northern side of the street to the west of its intersection with Lawrence Hargrave Drive. It is a rectangular shaped allotment with a frontage of 18.275m and site area of 1472 m². The site slopes significantly from its rear to the street. It is developed with a single storey dwelling toward the front and an elevated single storey studio at its rear. 2. An uncategorised natural drainage line traverses the site and it contains a number of native trees. 3. The site is located within a low density residential setting and is surrounded by a mixture of lot sizes and shapes. Dwellings on these allotments range from large contemporary detached two storey dwellings to older single storey clad cottages. 4. Multi-unit housing development is located on allotments further along and higher up Broadridge Street with a number of battle axe allotments in that section of the street. The South Coast rail line is approximately 160 m to the west of the site and the site is on the lower reaches of the Illawarra Escarpment. The proximity of the site to this vegetation means that it is bushfire prone. Background and the proposal 1. The development application was originally lodged on 7 March 2014. Since that time the applicant has provided additional information in response to requests by Council and the NSW Rural Fire Service (RFS). The Council notified the application on three occasions and ultimately refused consent on 9 March 2015. 2. It is proposed to subdivide the site into two allotments. Proposed Lot 41 would have a frontage of 13.275 m to Broadridge Street, western boundary of 44.35m, eastern boundary of 30.665m and site area of 497.7m². Proposed Lot 42 is a battle axe allotment with a 5m wide handle and frontage to Broadridge Street, depth of 21.54m (Western) and 66.91m (eastern) and rear boundary of 18.285 m. The area of the allotment totals 715.1m² including the handle or 561.8m² excluding that handle. 3. The boundary of the two proposed allotments is angled and follows the line of the watercourse that runs through the site. It is proposed to pipe part of that watercourse adjacent to the proposed access handle. The existing dwelling would be contained within Lot 41 with the proposed dwelling to be constructed on Lot 42 after appropriate geotechnical works have been done to ensure stability of the site due to its steep slope. A 10m wide asset protection zone is required across the rear northern portion of lot 42 due to the proximity to the vegetation within the escarpment. 4. The proposed dwelling comprises a two-car garage and entry on the lower level with a three bedroom dwelling above. Entry to the garage area and entry portico would be at grade with the site excavated for the extent of the garage, entry and stairway. The finished floor level of the upper floor level would also be at grade at the rear of the dwelling however, the plans provide for further excavation of the site to facilitate a more level private open space area. 5. The roof of the proposed dwelling incorporates a north facing skylight to facilitate solar access to the living areas. 6. A covered outdoor living area is provided to the north of the living room and adjacent to the rear open space areas. The planning controls 1. The site is zoned R2 Low Density Residential under the provisions of Wollongong Local Environmental Plan 2009 (LEP). Clause 2(3) of the LEP requires the consent authority to have regard to the objectives of the zone when determining a development application. The objectives of the R2 zone 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. 1. Pursuant to clause 2.6 of the LEP the development would be permissible with consent. Part 4 of the LEP contains Principal development standards with Clauses 4.1 - Minimum subdivision lot size, 4.3 - Height of buildings and 4.4 - Floor space ratio relevant to the application. According to the corresponding map, the minimum lot size is 450m², the maximum building height is 9m and maximum floor space ratio (FSR) is 0.5:1. 2. The area of each allotment exceeds the minimum lot size, the proposed FSR, as calculated by the Council is 0.24:1 and the height of the proposed dwelling is 6.8m. Accordingly the development satisfies all of the development standards. 3. Wollongong Development Control Plan 2009 (DCP) applies to the site with Chapters B1: Residential Development and B2: Residential Subdivision particularly relevant to the application. 4. State Environmental Planning Policy No 55 - Remediation of Land (SEPP55), State Environmental Planning Policy No 71 - Coastal Protection (SEPP71), State Environmental Planning Policy (Building Sustainability Index BASIX) (SEPP BASIX) apply the application. 5. The aims of SEPP71 are included in clause 2 of that policy as follows: (a) to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast, and (b) to protect and improve existing public access to and along coastal foreshores to the extent that this is compatible with the natural attributes of the coastal foreshore, and (c) to ensure that new opportunities for public access to and along coastal foreshores are identified and realised to the extent that this is compatible with the natural attributes of the coastal foreshore, and (d) to protect and preserve Aboriginal cultural heritage, and Aboriginal places, values, customs, beliefs and traditional knowledge, and (e) to ensure that the visual amenity of the coast is protected, and (f) to protect and preserve beach environments and beach amenity, and (g) to protect and preserve native coastal vegetation, and (h) to protect and preserve the marine environment of New South Wales, and (i) to protect and preserve rock platforms, and (j) to manage the coastal zone in accordance with the principles of ecologically sustainable development (within the meaning of section 6 (2) of the Protection of the Environment Administration Act 1991), and (k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and (l) to encourage a strategic approach to coastal management. 1. Clause 8 details the matters the consent authority must consider as part of the assessment of any development application to which the policy applies and is in the following form: (a) the aims of this Policy set out in clause 2, (b) existing public access to and along the coastal foreshore for pedestrians or persons with a disability should be retained and, where possible, public access to and along the coastal foreshore for pedestrians or persons with a disability should be improved, (c) opportunities to provide new public access to and along the coastal foreshore for pedestrians or persons with a disability, (d) the suitability of development given its type, location and design and its relationship with the surrounding area, (e) any detrimental impact that development may have on the amenity of the coastal foreshore, including any significant overshadowing of the coastal foreshore and any significant loss of views from a public place to the coastal foreshore, (f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities, (g) measures to conserve animals (within the meaning of the Threatened Species Conservation Act 1995) and plants (within the meaning of that Act), and their habitats, (h) measures to conserve fish (within the meaning of Part 7A of the Fisheries Management Act 1994) and marine vegetation (within the meaning of that Part), and their habitats (i) existing wildlife corridors and the impact of development on these corridors, (j) the likely impact of coastal processes and coastal hazards on development and any likely impacts of development on coastal processes and coastal hazards, (k) measures to reduce the potential for conflict between land-based and water-based coastal activities, (l) measures to protect the cultural places, values, customs, beliefs and traditional knowledge of Aboriginals, (m) likely impacts of development on the water quality of coastal waterbodies, (n) the conservation and preservation of items of heritage, archaeological or historic significance, (o) only in cases in which a council prepares a draft local environmental plan that applies to land to which this Policy applies, the means to encourage compact towns and cities, (p) only in cases in which a development application in relation to proposed development is determined: (i) the cumulative impacts of the proposed development on the environment, and (ii) measures to ensure that water and energy usage by the proposed development is efficient. The issues 1. The contentions in the case were detailed in the Statement of Facts and Contentions (Exhibit 4) and, through the provision of additional information, particularly in relation to bushfire, have now, as advised by Mr Reilly for the Council, been satisfactorily resolved. The evidence 1. The hearing commenced on site with evidence heard from a number of objectors to the proposal. That evidence was heard in the company of residents of adjacent properties within those properties to facilitate an explanation of the adverse impacts they described. The issues raised by objectors are summarised as follows: * Privacy and overlooking; * Non-compliance with planning controls; * Out of character with the locality; * Geotechnical issues and concerns about the need for site rehabilitation; * NSW RFS bush fire safety authority is inconsistent with others issued in the locality; * Visual impact of fence required to accord with the conditions of the bushfire safety authority; * Flooding and drainage; * Overshadowing; * Traffic and pedestrian safety; * Tree removal; * Visual impact, bulk and scale; * Dwelling is designed so that it could become a three storey dwelling. 1. In addition to the evidence heard on site, the council has provided copies of all submissions it received in response to the series of notifications it had arranged. They are included in the council bundle of documents, Exhibit 2, and have been reviewed by the Court. 2. The Council tendered an assessment of the application having regard to those details and the provision of Section 79C of the Environmental Planning and Assessment Act 1979 (EP&AAct) (Exhibit 3). 3. The conclusion of that report states: Only after having regard to the changes made to the development and the amended device by the NSW Rural Fire Service, on balance, the proposal is now capable of being approved. Whilst there are still some additional report and design information to be addressed it is considered that the content of the proposed draft conditions and consent framework provides for the orderly development of the land as sought such that impacts are sufficiently mitigated and/or can be reasonably managed in the circumstances of the case. The development is not expected to have unreasonable impact on the environment or the amenity of the locality. It is considered appropriate with consideration to the zoning and the character of the area and is therefore considered to be in the public interest. Conclusion and findings 1. Following receipt of the additional information from the applicant and the bush fire safety authority from the RFS the council did not oppose the grant of consent and Mr Reilly advised the Court that the conditions of consent adequately addressed the concerns of residents. I was not satisfied that this was the case and called for a number of amendments to be made to those conditions, particularly clarifying timing of works, release of the subdivision certificate and the extent of ameliorative works that are to be undertaken to address privacy concerns. An agreed set of conditions that reflect those requirements was provided to the Court on 29 January 2016. 2. Having regard to the evidence, I am satisfied that the development is consistent with the objectives of the R2 zone and the council's planning controls. Where there are areas of non-compliance, the breach of those controls is minor and reflects the particular circumstances of the site, in particular, the lot depth is slightly less than the 25m required however that is because the proposed boundary follows the line of the watercourse. The area of non-compliance is a small triangular section approximately 3.5m in depth with the remainder of Lot 42 exceeding the control. I am also satisfied that an appropriate building envelope can be established as proposed. 3. The development would be consistent with the provisions of SEPP71, the impacts of the development on the natural and built environments are acceptable and that there are no adverse social or economic impacts in the locality that would arise if consent were to be granted. The council is satisfied that the design of the development is appropriate and suitable for the constraints of the site. 4. The NSW RFS has issued the necessary bush fire safety authority and the council advises that this is appropriate in the circumstances of the case. 5. In relation to the issues raised by objectors, I accept the council's evidence and am satisfied that the development, where inconsistent with the planning controls is appropriate and that adequate separation distances are provided between the existing and proposed dwellings to address privacy concerns. I accept Mr Reilly's submission that the dwelling is not too big and is appropriately designed having regard to the slope of the site. 6. The dwelling is not designed so that it would be capable of conversion to a three storey dwelling without further extensive excavation and increase to the height of the roof. Having regard to the slope of the site, I accept the council's evidence that it is appropriate to vary the DCP control that restricts dwellings on battle-axe allotments to single storey. The extent of excavation has been minimised by not excavating the subfloor area and only that portion of the site required for the garage and entry foyer/stairs. The dwelling as proposed is not out of character with the locality and I accept the council's advice that the fencing proposed to address bushfire issues and overshadowing resulting from the new dwelling would be acceptable, that flooding issues have been appropriately addressed and the conditions of consent will ensure no adverse impacts are caused to adjacent properties. There being no reason why the Consent Orders should not be made, by consent, the Orders of the Court are: 1. The appeal is upheld. 2. Development Application DA – 2014/2454 proposing subdivision and the construction of a new dwelling house in two phases, phase 1 involving minor demolition, geotechnical remediation works and a two lot Torrens Title subdivision and phase 2 involving the construction of a new dwelling house at No 2 Broadridge Street Wombarra is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A, D, E and 4, are returned. ______________________ Sue Morris Commissioner of the Court 10798 of 2015 (C) Morris (458 KB, pdf) ********* 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: 10 February 2016