Land and Environment Court New South Wales Medium Neutral Citation: Complex Field Pty Limited v Ballina Shire Council [2016] NSWLEC 1239 Hearing dates: 8 June 2016 Date of orders: 14 June 2016 Decision date: 14 June 2016 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: subdivision, whether conditions requiring restriction as to user should be imposed Legislation Cited: Land and Environment Court Act 1979; Ballina Local Environmental Plan 2012; State Environmental Planning Policy No. 71 – Coastal Protection; Coastal Protection Act, 1979; Environmental Planning and Assessment Act 1979; State Environmental Planning Policy (Exempt and Complying Development 2008) Cases Cited: MacDonald v Mosman Council [1999] NSWLEC 215 Texts Cited: Ballina Development Control Plan 2012; Building Code of Australia Category: Principal judgment Parties: Complex Field Pty Limited (Applicant) Ballina Shire Council (Respondent) Representation: Counsel: Mr T Hale SC (Applicant) Mr M Seymour (Respondent) Solicitors: Bilbie Dan (Applicant) C H Law (Respondent) File Number(s): 2016/159728 (Formerly 2015/11063) Judgment 1. Complex Field Pty Ltd lodged Development Application DA 2015/377 with Ballina Shire Council on 28 July 2015 seeking consent to subdivide two adjoining allotments to create four lots. The Council refused consent and Complex Field is appealing that decision. 2. The matter commenced as a conciliation conference with agreement in principle reached to the subdivision however no agreement was reached regarding consent conditions. The conciliation conference was terminated and the matter is now the subject of a hearing pursuant to the provisions of Section 34(4)(b) of the Land and Environment Court Act 1979. 3. The particular condition in dispute, condition 16, requires the registration of a restriction to user on each of the four lots. The applicant opposes that condition and it is this issue that is before the Court. The site and the locality 1. The application relates to 2 adjoining allotment, Lots 32 and 33 in DP 1168665 known as Nos 51 and 53 Blue Seas Parade, Lennox Head. The lots have areas of 2025 m² and 1892 m², side boundaries of 54.058m/61.105m and 46.407m/54.058m respectively and are located on the eastern ridge line (that runs north to south) of the Coastal Grove Residential Estate. That estate is located along the coastal escarpment. The sites are steep and currently remain vacant with a fall from Blue Seas Parade to the rear of the allotments. There is a fall of some 19m front to rear across Lot 32 and around 16m across Lot 33. Drainage easements run along the rear, western boundary of the sites with an easement for multi-purpose electrical installations 5.4m wide located in the north eastern corner of Lot 32. 2. Land to the immediate north and south of the site was vacant at the time of the site view which was undertaken on 18 February 2016 with dwelling houses constructed on the adjoining lot to the west with frontage to Matilda Street. The land on the opposite side of Blue Seas Parade was also vacant. Background and the proposal 1. The proposal seeks to subdivide each lot into two allotments. Proposed Lots 1 and 2 would be a re-subdivision of Lot 33 and would have frontages of 18.377m with Lot 1 having side boundary dimensions of 46.407m and 50.374m and a rear boundary of 19.578m resulting in a site area of 932m². Lot 2 would have side boundaries of 50.374m and 54.058m, a rear boundary of 19.509m and a site area of 959m². 2. Lot 32 would be subdivided into Lots 3 and 4 with both lots having a frontage of 17.584m. Lot 3 would have the side boundaries of 54.058m/57.58m and a rear boundary of 18.460m with a resultant site area of 981m². Proposed Lot 4 has side boundaries of 57.58m/61.105m, a rear boundary of 17.295m and an area of 1043m². 3. All lots would fall from front to rear with an approximate level difference of 15m across Lot 1, 15m across Lot 2, 17m across Lot 3 and 18.5m across Lot 4. The planning controls 1. The site is zoned R2 Low Density Residential under the provisions of Ballina Local Environmental Plan 2012 (LEP). Clause 1.2 of that plan sets out its aims and clause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 2. 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. • To provide for development that is compatible with the character and amenity of the surrounding neighbourhood. • To provide for development that meets the social and cultural needs of the community. • To encourage development that achieves the efficient use of resources such as energy and water. 1. Clause 4.1 of the LEP provides for minimum lot sizes and the minimum lot size applicable to the site is 600sqm. 2. The site is within the "coastal zone" as defined by the Coastal Protection Act, 1979, where the provisions of State Environmental Planning Policy No. 71 – Coastal Protection apply. There are no contentions that relate to this policy. 3. Ballina Development Control Plan 2012 (DCP) applies to the site with Chapter 3, Urban Subdivision most relevant to the application. The purposes of the chapter is to identify Council's requirements relating to the subdivision of urban land, including residential, commercial and industrial land. 4. In applying the provisions of the Chapter, the following explanation is provided: The provisions of this chapter are categorised in relation to a series of planning considerations (referred to as elements). For each element, planning objectives and development controls are specified. Development proposals must be consistent with the planning objectives for the chapter and each of the applicable elements. Such consistency is typically demonstrated by compliance with the identified development controls, although there may be circumstances where an alternative to the application of a development control is consistent with the planning objectives. 1. Under the provisions of the DCP, the subdivision would be defined as "Minor Subdivision and the following controls apply: A. Element - Modification of Landform Planning Objectives a. Ensure subdivisions, as far as practicable, are designed to fit the topography rather than altering the topography to fit the subdivision; and b. Discourage re-contouring of land post subdivision as the preferred method of construction. Development Controls i. Development applications for the subdivision of urban land shall be accompanied by a geotechnical report prepared by a practicing Geotechnical Engineer. The report shall include soil classification details prepared in accordance with Australian Standard AS2870.1. The subdivision shall be designed in a manner which responds to the findings and recommendations of the report; ii. Proposed lots with slopes greater then 15% are to be nominated at the subdivision stage. In some cases Council may require a notification on the title or other mechanism to alert future lot owners to the slope constraint; iii. Proposed lots with slopes greater than 20% are to nominate a building envelope measuring no less than 10m x 15m at the subdivision stage to demonstrate that a dwelling can be suitably accommodated on that lot; iv. Where the subdivision works include site modification of individual lots for building pads and the like, earthworks are restricted to a maximum cut or fill of 1500mm from natural ground level for a single cut/fill, or a maximum of 1100mm per cut/fill where more than one cut/fill proposed for the lot; v. Each allotment shall be designed such that vehicular access can achieve the desirable maximum gradient of 1:6. This may require the creation of pads for garages at subdivision construction stage. Council may consider a maximum gradient of 1:4 but only where it can be demonstrated that no reasonable alternative to this solution is possible. 1. The council also references the provisions of Chapter 4, Residential and Tourist Development despite acknowledging that no development other than subdivision is proposed under the application. In particular, it cites the provisions of Part 4 – Special Area Controls. Part 4.1 applies to the Coastal Grove Estate, Lennox Head with Part 4.1.3 in the following form: 4.1.3 Development Controls A. Element - Building Height i. Dwelling houses must not be comprised of more than 2 storeys except as set out in (ii); and ii. Dwelling houses located on Lots 26-32 DP 1168665 (Blue Seas Parade) must not exceed 1 storey above ground level (existing) when viewed directly from the front street boundary of the lot. Note: The building height plane provisions contained in Part 3 of this chapter apply to residential development in the Coastal Grove Estate. B. Element - Slope Sensitive Design Dwellings and associated development on residential lots with a slope greater than 15% are required to conform to the following requirements: Driveways  Driveways are to not to exceed a maximum gradient of 1:6 unless it can be demonstrated to the satisfaction of the consent authority that no reasonable alternative to this solution is possible. In such cases driveways are not to exceed a maximum gradient of 1:4.  Applications are to include a long section drawing of proposed driveway access that has been prepared by an appropriately qualified person based on site survey information. Earthworks  Earthworks are subject to the following requirements: Table 4.7 – Coastal Grove Earthworks Requirements Geotechnical zone1 Maximum cut or fill - Maximum cut or fill – Property boundary elsewhere on site 1 1.2m No limitation if works Contained fully within building envelope 2 1.2m 2.5m if works contained fully within building envelope 3 1.2m 1.5m 1Geotechnical zones are shown in the Coastal Grove Assessed Slope Suitability Zoning Plan attached in Appendix A. Notes: Cut and fill parameters mean that excavation and/or filling on sites with a slope exceeding 15% may, in some circumstances, exceed 1m (on property boundary) and 1.5m (elsewhere on the site). This is subject to the conditions identified above and relevant engineering and geotechnical assessment demonstrating the suitability of the site for the proposed excavation/ filling and associated works. The geotechnical zones are based on analysis undertaken by Coffey Geosciences in relation to the application for the subdivision of the land. C. Element - Geotechnical and Engineering Assessment i. Applications for development on land within geotechnical zone 3 (see Appendix A - Coastal Grove Assessed Slope Suitability Zoning Plan) must be accompanied by a geotechnical assessment. The assessment is to be prepared by a qualified geotechnical engineer. ii. Where a geotechnical assessment is required, applications for development must demonstrate that the findings of the assessment have been considered in relation to the structural design of the proposed development. Note: Applicants may be required to have regard for the geotechnical assessment undertaken by Coffey Geosciences in relation to the application for the subdivision of the land. The issues 1. At the conclusion of the conciliation conference the council agreed that there were no reasons why consent to the proposed subdivision should not be granted subject to conditions. All of the conditions apart from condition 16 were agreed by the applicant. Proposed condition 16 reads as follows: 16. Restrictions on use Prior to the issue of the Subdivision Certificate, and in addition to those existing covenants applying to parent allotments, the following Section 88B positive covenants are to be placed on the title of proposed Lots 1 to 4 (inclusive): (a) restricting the placement of any future dwelling house and any other buildings/structures including a secondary dwelling but excluding a swimming pool to an approved building envelope of 17m deep x 15 m wide commencing at the 6m building line; (b) restricting any future dwelling house and any associated buildings/structures to one storey above ground level (existing) when viewed directly from the front street boundary of the lot; (c) alerting future lot owners that the slopes are greater than 20% and that the design and construction of the future dwelling house and any associated buildings/structures are to adopt slope sensitive design requirements accompanied by a geotechnical investigation specifically for the proposed dwelling house prepared by a suitably qualified consultant and specific requirements of Ballina Shire Development Control Plan 2012 Chapter 4 – Residential and Tourist Development, Part 4 – Special Area Controls Coastal Grove Estate, Lennox Head. Only Council is to be nominated as the sole person/party to release/vary or modify the restrictions on use. Details of the positive covenant are to be submitted to and approved by Council prior to the issue of the Subdivision Certificate. 1. The contention in the case is whether this condition should be imposed. The evidence 1. Expert town planning evidence was prepared by Mr D Roberts for the applicant and Mr A Peters for the council. Their expert report was tendered as Exhibit 3 in the proceedings and they were not required for cross examination. 2. In relation to proposed condition 16(a) the experts agree that all of the proposed lots have a slope greater than 20%; the DCP requires subdivision applications to nominate a minimum building envelope measuring no less than 10m x 15m for such sites; such plan did not accompany the original application lodged with the council and was not sought during the assessment phase; Section 3.1.2(ii) of the DCP states "….Council may require a notification on the title or other mechanism to alert future lot owners to the slope constraint."; an 88b instrument is the appropriate notification on title to alert such owners; an 88b instrument can be varied subject to Council consent; a building envelope restriction is reasonable to be placed on a lot at subdivision stage due to environmental/vegetation constraints; that it is reasonable to apply a condition that relates to a DCP; and the 88b instrument is likely to assist in mitigating potential impacts such as privacy/overlooking on downslope properties and to limit potential visual impacts (including ridgeline). Dwelling houses of greater separation generally have less privacy/overlooking impacts than dwellings closer together, i.e. elevated sites. 3. Mr Peters says the proposed condition is consistent with the DCP and should be imposed to apply constraints on future buildings at the subdivision application stage due to high likelihood of potential impact on neighbours and environmental sensitivities (steepness) applicable to future buildings on the resultant smaller allotments. 4. Mr Roberts disagrees and says the DCP makes no reference to notification on title and only requires applications to demonstrate minimum 10m x 15m building envelopes can be achieved. Placing this restriction on title possibly prevents future owns from designing dwellings that relate to the slope of the land. The design and location of the dwelling should be considered at a future stage either through the Development Application or Complying Development process. Section 79C(3A)(b) of the Environmental Planning and Assessment Act 1979 (EP&AAct) states that the consent authority "is to be flexible in applying those provisions and allow reasonable alternate solutions" which the 88B instrument does not provide. Placing a restriction on a title via an 88B instrument to require full compliance with a development control guidelines contained within a DCP is contrary to that provision. 5. In regard to proposed condition 16(b) the planners agree that the currently applicable development controls under the DCP state that dwelling houses located on Lot 32 DP1168665 (i.e. proposed lots three and four) "must not exceed one storey above ground level (existing) when viewed directly from the street boundary of the lot; that via complying development provisions a two storey dwelling can currently be erected on Lot 32 despite the development controls of the DCP; that and 88B restriction would prevent the erection of a two storey (8.5 m) high dwelling house upon proposed Lots 3 and 4 under complying development and therefore achieve compliance with Section 4.1.3 (ii) of the DCP and its planning objectives; that DCP's are guidelines only and can be varied, but development controls should generally be consistently applied to give a degree of certainty and confidence to the general public and to control foreseeable or likely impacts from developments; the intent of the one storey control is to minimise visual impact of dwelling houses on the ridge line; Council survey staff have survey to the ridge line and confirmed that the ridge line height at the prolongation at the common boundary between proposed lots two and three (i.e. where the DCP height/storey control ends) is approximately 900mm higher than that between the prolongation of proposed Lots 3 and 4 (i.e. where the DCP height/storey control applies) in relation to the ridge line; that a two Storey dwelling (at 8.5m height at 6m building line) erected on proposed Lots 2, 3 and 4 would be above the ridge line to the east; that proposed Lots 1 and 2 (i.e. Lot 33 DP 1168665) do not have any single storey restrictions via Section 4.1.3 (ii) of the DCP. 6. Mr Roberts reiterates his views that the 88B instrument would be inconsistent with the flexibility provisions of Section 79C(3A)(b). Additionally, a dwelling can currently be constructed on top of the ridge directly east of these lots by a complying development certificate without the consent of Council, this is in addition to the large shed and other dwellings already constructed on the ridge. This makes the intent of the control pointless as there is already development on the subject ridge and the erection of two story dwellings on the new lots is unlikely to create any unreasonable visual impacts. 7. Mr Peters says the 88B instruments can be varied by Council and in the circumstances of this application that he says seeks additional development on the ridge, it is considered reasonable to apply the dwelling house height controls on proposed Lots 2, 3 and 4 due to the agreement between the experts that a two storey dwelling house would visually impact on the ridge line and that the DCP is it attempting to avoid this foreseeable impact from future dwelling houses on via the control. Without the instrument the planning objectives of the DCP can be avoided via complying development provisions and a two storey dwelling house would not "achieve the objects of those standards for dealing with that aspect of development" as provided under Section 79C(3A)(b). Furthermore, the instrument sets clear expectations for prospective purchasers of the subject lots and then neighbours. If the intent of the one storey DCP control was maintained, it should also apply to proposed Lot 2 based on a ridge line height difference of only 900 mm. He says it is appropriate to apply constraints on future buildings at the subdivision application stage due to the high likelihood of potential impact on neighbours and environmental sensitivities applicable to future buildings on the resultant smaller allotments. 8. The planners agree that proposed condition 16(c) has regard to the provisions of Chapter 3, Part 3, Section 3.1.2 (ii) of the DCP which states "proposed lots with slopes greater than 15% are to be nominated at the subdivision stage. In some cases Council may require a notification on the title or other mechanism to alert future lot owners of the slope constraint." They also agree that all four proposed lots are located within geotechnical zone 3 for the purpose of Table 4.7; that Chapter 4, Part four, Section 4.1.3, Element C(i) of the DCP states "applications for development on land within geotechnical zone three must be accompanied by a geotechnical assessment..."; that a geotechnical site investigation was provided with the subdivision development application from "Australian Soil and Concrete Testing"; that that report was generic and did not recommend a particular building footing or structural design for future dwelling houses on proposed Lots 1 to 4 (inclusive); that due to slope and geotechnical constraints, future dwelling house designs will be restricted; that pursuant to public interest, it is beneficial for the general public to know about site constraints at an early stage; that a Section 149 Planning Certificate for the properties identifies slope constraints, but the comments are not specific; that in principle, a prospective purchaser would be more aware of an 88B restriction on title than a DCP development control and that the proposed wording is consistent with the wording for modification of land form and earthworks and slope sensitive design contained within the DCP. 9. Mr Peters says that due to environmental sensitivities (i.e. steep slope constraints) and geotechnical considerations, future dwelling designs will be restricted and the geotechnical report provided is generic and did not recommend a particular building footing design. It simply concludes that the site will not be affected by landslide or subsidence when the building is constructed using good engineering practice. It may alert a Structural Engineer to appropriate Australian Standards, but not general prospective purchasers of the lots whereas the instrument does. 10. He says State Environmental Planning Policy (Exempt and Complying Development 2008) (SEPP Exempt and Complying), Part 3, General Housing Code provisions (and set prescribed conditions) do not need to have regard for specific geotechnical requirements. He says those provisions and conditions have been drafted for low impact and unconstrained lots. The proposed covenant would ensure that the geotechnical requirements are suitably considered. 11. Mr Roberts says two geotechnical site investigations were undertaken and provided a soil classification (Class M) and a hazard classification (Class B: Significant Hazard). This alerts any future building designer, architect or structural engineer that AS 1726 (as stated in the current Geotechnical Site Investigation) must be considered. It is not necessarily the job of a geotechnical report to recommend the type of footings to be used. A Complying Development Certificate is required to comply with the Building Code of Australia and applicable Australian Standards, this requires the principal certifying authority to consider any geotechnical constraints that the lot may or may not have. Conclusion and findings 1. Having regard to the evidence, there is no reason why consent to the proposed subdivision should not be granted. What is in dispute is whether it is necessary to impose any restriction to user on the land to address the siting of buildings, building height and geotechnical constraints of the land. 2. Section 80A of the EP&AAct refers to the imposition of conditions and provides that a condition may be imposed if, in the case of subclause (a), it relates to any matter referred to in section 79C(1) of relevance to the development of the subject of the consent. Other provisions of that clause are not relevant to the application. That provision provides for consideration of the LEP and DCP however, caution must be exercised in determining whether or not the condition is actually relevant to the particular development. In this instance the application is for the subdivision of land and nothing else. No earthworks, construction or other form of development is proposed. The site is currently serviced with road access and relevant essential services and does not require any amplification of those services. Through the agreement in principle to the subdivision, the Council does not submit the site is not suitable for the subdivision that is proposed. Similarly, nothing has been raised in submissions received by the Council that I consider warrant refusal of consent. 3. It is the Council's position that due to the narrower width of the allotments, it is likely that any future dwelling house would extend further down slope of the site than if a dwelling was constructed across the wider frontage that is now available. It also seeks to enforce through a restriction to user, a DCP provision that would restrict the height of buildings on proposed Lots 1, 2, 3 and 4 to single storey when viewed from the front street boundary of the lot. Such provision goes beyond the DCP control in Part 4.1.3A ii which only applies to Lot 32 (proposed Lots 3 and 4). 4. I note that no such provisions were imposed when the original subdivision was approved and, whilst acknowledging that the reduced lot with may impact on the siting of any proposed dwelling, the subdivision that is before the Court does not in any way change the slope of the land. 5. Similarly, I note that through the conciliation process, the applicant has provided a plan that demonstrates that an appropriate building envelope can be provided on each of the lots. That plan, Exhibit D, satisfies the relevant DCP provision. The DCP requires demonstration that an area would be available on any proposed lot within a subdivision where land is steeply sloping to satisfactorily accommodate a dwelling. It does not seek to restrict that location to that particular envelope, rather it seeks to ensure that the proposed lot would be suitable for future development with a dwelling house. 6. I do not consider that the building envelope indicated on Exhibit D is the only location on which a dwelling could be constructed and, there is no evidence before me that suggests this is the case. Due to the consistent slope of the site, such envelope could be sited anywhere on the land however I except that it is most likely that a dwelling would be located towards the street and in particular to take advantage of the views that would be available from that location. 7. Other than the DCP provision that requires nomination of a building envelope, there is no evidence before the Court to suggest that the constraints of the site are such that only a particular part of any of the proposed lots are suitable to site a dwelling house. The DCP does not seek to limit the siting of a dwelling, nor does it seek to limit the footprint of a dwelling. 8. The provisions of proposed condition 16(a) seek to restrict the placement of any future dwelling house and any other building structures including a secondary dwelling (other than a swimming pool) to an approved building envelope that is 17m deep and 15m wide commencing at the 6m building line. 9. The issue of imposing conditions of consent that require the registration of a restriction to user has been considered by the Court on a number of occasions. Lloyd J in MacDonald v Mosman Council [1999] NSWLEC 215 considered the issue and summarises earlier cases that had come before the Court. It is clear from his decision that it is not appropriate to impose a condition of consent that requires the registration of a restriction to user on the title of the land that thwarts the merit assessment of any future development applications under the current or any future DCP and LEP controls. I also add to that the provisions of SEPP Exempt and Complying. There is no evidence before me that the site has any constraints that warrant limitation of future development to a particularly sized and located building envelope. The lots, whilst smaller than originally approved, are not small lots and are similar in size though steeper than others within the estate. 10. The future development of the lots will be subject to either determination of a development application or through the issue of a Complying Development Certificate. I am satisfied that these provisions adequately provide for the siting of a dwelling on all of the allotments without the need to restrict the location of such a dwelling. That is all that is sought through the DCP. Accordingly, proposed condition 16(a) is unnecessary and should not be imposed. 11. I find similarly in regard to proposed condition 16(b). The provisions of S79C(3A)(b) of the EP&AAct require the flexible approach to controls within the DCP. The proposed condition seeks to remove that flexible approach and would also prevent the application of SEPP Exempt and Complying. I do not consider that such a limitation is appropriate or necessary in the circumstances of the case, particularly in relation to proposed Lots 1 and 2. For these reasons I do not consider that it is appropriate to limit development on all 4 lots to single storey when viewed from the street. 12. Proposed condition 16 (c) (originally d however the council deleted what was to be c) attempts to advise potential purchasers of the slope constraints of the land and comply with the relevant DCP provisions. I also find that this clause is unnecessary. The DCP will continue to apply however, may be from time to time amended. In the case of complying development, I am satisfied that the provisions of that policy and the related mandated conditions provide satisfactory safeguards to ensure that any future dwelling or structure on the land would be constructed in an appropriate manner. The council has the opportunity to alert any future purchaser of the geotechnical constraints of the site through the issue of a planning certificate pursuant to Section 149 of the EP&AAct. I do not accept that a Restriction to User under s88B would be any better warning to a purchaser than would be provided through such a certificate. 13. For these reasons, I do not consider that it is appropriate to impose draft condition 16. 14. The Orders of the Court are: 1. The appeal is upheld. 2. Development Application DA 2015/377 for the subdivision of Lots 32 and 33 DP 1168665 known as Nos 51 and 53 Blue Seas Parade, Lennox Head into a total of 4 lots is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits B, C, D and 2, are returned. _____________________ Sue Morris Commissioner of the Court 159728.2016 Annexure A (45.2 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: 14 June 2016