Land and Environment Court New South Wales Medium Neutral Citation: Raftopoulos & anor v Georges River Council [2016] NSWLEC 1455 Hearing dates: 12-13 September 2016 Date of orders: 30 September 2016 Decision date: 23 September 2016 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld see [94] Catchwords: DEVELOPMENT APPLICATION: Subdivision; construction of a dwelling; site suitability; impact on neighbouring properties Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993 Kogarah Local Environmental Plan 2012 Standard Instrument – Principal Local Environmental Plan Lane Cove Local Environmental Plan 2009 Cases Cited: BGP Properties Pty Ltd v Lake Macquarie Council [2004] NSWLEC 399 Micaul Holdings Pty Limited v Randwick City Council [2015] NSWLEC 1386 Category: Principal judgment Parties: Jim and Harriet Raftopoulos (Applicants) Georges River Council (Respondent) Representation: Applicants: Mr M Staunton (Barrister) Respondent: Mr S Griffiths (Solicitor) Solicitors: Applicants: Jaku Legal Respondent: Pikes & Verekers Lawyers File Number(s): 163044 of 2016 Judgment 1. COMMISSIONER: The applicants appeal the refusal by the former Kogarah Council, now Georges River Council, of Development Application No.172/2015 for the subdivision of one lot into two and the erection of a new dwelling on the newly created rear lot. 2. The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act, 1979 (EPA Act). 3. The matter commenced on site as a mandatory conciliation under s 34AA of the Land and Environment Court Act 1979 (Court Act). As there was no agreement between the parties, the matter proceeded immediately to a hearing on the basis of what had been discussed during the conciliation. The site and its locality 1. The site is located at 26 Parkside Drive, Kogarah Bay. The site is on the north-eastern side of the road opposite Parkside Reserve. 2. The existing lot is irregular in shape with an area of 1020.7m2 with a frontage to Parkside Drive of 27.15m; the rear boundary is 15.24m wide. The front, north-western side, and rear boundaries are conventionally straight in alignment. The north-eastern boundary runs diagonally and adjoins an unformed section of Wyee Street. The resulting shape is somewhat trapezoidal. The site is defined by its topography; the front of the site is relatively flat; the rear of the site comprises a sandstone escarpment. 3. There is a two storey dwelling in the front western corner of the site. To the east of the dwelling is a double carport. At the rear of the dwelling is a paved courtyard set into a steeply sloping sandstone escarpment which intersects the site from northwest to southeast. The escarpment is quite heavily vegetated with a mixture of native and exotic species including what are thought to be remnant Cheese Trees (Glochidion ferdinandi) growing in the upper north-eastern corner of the site. The escarpment is characterised by a series of cut cliff faces, narrow benches, boulders and rocky outcrops typical of Sydney Sandstone. 4. The unformed portion of Wyee Street is bisected by the sandstone cliff. The lower portion off Parkside Drive is mostly grass with some established Camphor Laurel trees close to the site; it slopes very gently up to the vegetated cliff line. The upper section which adjoins Mayor Street, above the cliff, is steeper and is known as Elizabeth Corry Reserve. Wyee Street and the adjoining lots, including the lower part of the site, were part of a former sandstone quarry. The rear of the site adjoins a portion of Elizabeth Corry Reserve. 5. The built environment of the area is characterised by large, generally one and two storey detached dwellings. The topography of the locality is characterised by flatter land around the bay and a series of dissected sandstone ridges; typical of the coastal areas of Sydney. The proposal 1. The applicants propose to subdivide the site into two lots. The lower lot, proposed lot 121, will retain the exiting dwelling. The upper portion of the site is proposed lot 122 upon which the applicants seek to construct a new part 2 part 3 storey/split level dwelling cut into the escarpment. Vehicular access is proposed via a new driveway to be constructed over part of the unformed section of Wyee Street. The common boundary between the proposed lots will necessitate the construction of a retaining wall across the western part of the courtyard behind the existing dwelling. The retaining wall will then merge into the rock face. The retained area is proposed to be landscaped. 2. As a consequence of the proposed earthworks, with the exception of trees 6 and 6A at the rear, almost all vegetation will be removed from the escarpment. Council's contentions 1. Council contends that the development application should be refused for the following reasons: 1. Minimum subdivision lot size: the site is unsuitable due to its size, shape topography, vegetation and location; non-compliance with the relevant development standard; fails to meet relevant objectives. 2. Impact of excavation and earthworks: excessive excavation, filling and retaining structures; impacts on amenity of adjoining properties; impacts on the natural rock features, including beyond the boundary. 3. Visual bulk and scale: unacceptable visual impacts; non-compliant setbacks. 4. Privacy: unacceptable impacts on the rear windows and private open space of the adjoining property at 24 Parkside Drive; overlooking of the front lot at 26. 5. Overshadowing: of the existing dwelling on the site; overshadowing results from poor design and inadequate rear setback. 6. Trees and landscaping: removal of vegetation on the ridgeline; topography and nature of construction limits the availability of suitable areas for landscaping and private open space. 7. Impact of the driveway on council's reserve: insufficient detail; impact on carport; could prohibit future development of Wyee Street. 8. Stormwater management: on-site detention (OSD) tank too small; no provision of an OSD on proposed lot 121; insufficient information. 9. Inadequate information: survey plan; spot levels; shadow diagrams do not show proposed fences; elevations; driveway long sections and details; no construction management plan. 1. In summary, the council's position is that the proposed development is unsuitable for the site on the basis of topography, lot configuration, and significant departures from the controls. The council contends that in order to achieve technical compliance with the minimum lot size for the subdivision the applicants have created an unnatural boundary which fails to recognise the logical boundary line provided by the cliff line. The resulting configuration provides poor amenity for the existing dwelling and the adjoining property. The construction of a driveway on public land is not supported. The geotechnical evidence is such that the level of uncertainty is too great. For these reasons, council contends the development application should be refused. The applicants' position 1. The applicants maintain that the proposed lots comply with the specified area development standard, but accept that while they fall short on lot depth, the lots achieve the relevant objectives of the zone and of the standard. The issues raised by council are either not supportable or can be effectively managed. 2. During the hearing, Mr Staunton, on behalf of the applicants, advised that the applicants would be prepared to further amend the proposal by: deleting bedroom 3 from the second floor, reconfiguring the rumpus room on level 1 as the third bedroom, removing the bathroom and storage unit from level 1, and removing the stairs from the north-western boundary. The intent of these further amendments is to address a number of council's concerns including the retention of tree 7 (large remnant Cheese Tree), and increasing the setback from the adjoining property at 24 Parkside Drive. Exhibit F is a marked up copy of the proposed changes. The assessment framework 1. The site and the adjoining unformed section of Wyee Street, are zoned R2 – Low Density Residential under Kogarah Local Environmental Plan 2012 (KLEP). The proposal is permitted with consent as are roads. 2. The objectives for 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. KLEP cl. 4.1 – Minimum subdivision lot size, applies. The objectives of the development standard are provided in cl. 4.1(1), they are: (a) To promote the efficient use of land. (b) To ensure that subdivision does not prevent the orderly development of land, (c) To require adequate street frontages and dimensions for standard and battle-axe lots, (d) To ensure that the intensity of development is appropriate to the land's environmental capability. 1. Clause 4.1(3) states that the size of any lot resulting from subdivision must not be less than the minimum lot size shown on the Lot Size map; which in this case is 500m2. Further requirements are given in cl. 4.1(3A) which states (relevantly): (a) For land in Zone R2 Low Density Residential… (i) Minimum lot width – 15 metres, and (ii) Minimum lot depth – 30 metres, and (iii) If the lot is a battle-axe lot – minimum lot size: (B) 600 square metres, if the lot has a rear boundary with land in a residential zone… 1. As the proposal results in lots which do not satisfy the minimum lot depth, the applicant has submitted a request to vary the standard in accordance with cl. 4.6 – Exceptions to development standards. 2. The council presses KLEP cl. 6.2 – Earthworks. The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. Clause 6.2(3) sets out the matters a consent authority must consider before granting development consent for earthworks. Amongst other things these include: the likely disruption of, or any detrimental effect on drainage patterns and soil stability; the effect of the development on the existing and likely amenity of adjoining properties; any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 3. Kogarah Development Control Plan 2013 (KDCP) applies. The following clauses in part C1 – Low Density Residential apply (relevant sections extracted and summarised). * 1.2.2 – Building Heights: the objective is to ensure that the height of development is not excessive and relates well to the local context; relevant control for a single dwelling is 7.8m to the top of the parapet; the maximum number of residential levels is two except for sites which have a slope exceeding 12.5% where three residential levels are permitted; foundation areas, garages, basements, storage rooms or the like must not have an external wall height greater than 1m above ground level (existing) at any point of the building. * 1.2.4.3 – Side and Rear Setbacks: The objectives are: side setbacks should protect privacy to adjoining buildings and protect access to natural light and ventilation; rear setbacks should facilitate natural infiltration of stormwater and protect privacy to adjoining buildings. The rear setback is 15% of the average site length or 6m whichever is greater. Where the existing pattern of development displays an established rear setback, development should recognise and respond to site features and cross views of neighbouring properties. Council may permit a variation to the rear setback if it can be demonstrated that this will result in the retention of significant trees or site features and has no adverse impacts on neighbouring amenity. Side setbacks – for buildings having a wall height greater than 3.5m the minimum side boundary setback is 1200mm. * 1.5.1 – Visual Privacy: Control 1.55.1(6) Loss of privacy to neighbouring properties as a result of a proposed development will only be considered where a variation is sought to the objective or the design solution for floor space ratio, building height, building envelope, side boundary setbacks, extent of second level development or size of balcony/terrace. * 4.2.3 – Retaining walls: >600mm in height must be designed by a suitably qualified structural engineer. 4.2.3(3) A retaining wall that is visible from the street or public area must not exceed 1.0m in height, be designed with a minimum setback of 1.0m between retaining walls with landscaping provided, and be constructed of materials that do not detract from the streetscape. The hearing and evidence Objector evidence and site inspection 1. The hearing commenced on site. Mr Patroulias owns the adjoining property to the northwest (24 Parkside Drive). As with the development site, Mr Patroulias' property comprises a two storey dwelling at the street frontage with a level paved courtyard at the rear of the dwelling cut into the sandstone escarpment which than rises steeply to his rear boundary. Mr Patroulias is concerned that all of the vegetation at the rear of the site will be removed and rather than look out onto natural vegetation he will see a building that will dominate the cliff. He is also concerned that the upstairs rooms and the rear courtyard will be directly overlooked and will compromise his privacy. 2. The Court and the parties had the benefit of viewing the site from Mr Patroulias' dwelling, rear courtyard and the escarpment. Questions were asked as to how much of the natural rock face would remain along the common boundary as well as the potential impact on solar access of the proposed retaining walls and boundary fences. 3. The site was inspected. The proposed location of the driveway, garage, other elements of the design and the rear setback were identified. Trees 6, 6A and 7 were identified as were the trees in the unformed section of Wyee Street. The site was observed from Elizabeth Corry Reserve. 4. The Court and the parties walked to an unformed section of Wharf Road on which a concrete drive, similar to that proposed by the applicants, provides access to 33 Wharf Road. New and recent residential dwellings in elevated positions in Carlton Crescent were pointed out. 5. Expert evidence was provided by the following specialists: Area of expertise Applicants Respondent Planning Mr Kerry Nash Mr Ben Latta Arboriculture Mr Ross Jackson Mr Damien Duggan Geotechnical Engineering Mr Mark Green - Stormwater Mr David Wilcox Mr David Milner Civil Engineering Mr David Wilcox Mr Paul Croft 1. All experts were present on site; Mr Green and Mr Milner were not required for cross-examination. Stormwater 1. The parties' stormwater experts prepared a joint report (Exhibit 7). Amongst other things, the experts considered revised stormwater engineering drawings prepared on behalf of the applicants as well as council's 'Storm Water Web Calculator'. Both documents are attached to the joint report. 2. The experts agree that the plans address council's contention #8. An 8.7m3 OSD tank is proposed to be installed within the proposed driveway to the rear lot. A 12.5m3 OSD tank is proposed to be installed within the front setback of the front lot. During the site inspection, the engineers and arborists advised that the installation of the front tank would not compromise the health or stability of the large Eucalyptus microcorys (Tallowwood) street tree growing on the nearby verge. Arboricultural issues 1. The arborists agree that the landscape plans are very conceptual and that further detail is required, especially in regards to providing suitable growing conditions for replacement trees. 2. Tree 7, a mature and probably remnant Cheese Tree, is agreed to be the most significant and visually prominent tree on the site and worthy of retention. The arborists disagreed as to the likely longevity of trees 6 and 6A, a Cheese Tree and Native Daphne growing close together in a co-dominant arrangement; Mr Duggan considered them to be reasonably short term; Mr Jackson opined they were of good health with long-term viability. 3. The arborists agreed that the two Camphor Laurels in the northern corner of the unformed section of Wyee Street, close to the proposed driveway entrance onto the upper lot, were unlikely to be unreasonably compromised by its construction. Under cross-examination, Mr Jackson considered that a crane, located as indicated in the Construction Management Plan, would be unlikely to interfere with the trees in the road reserve. 4. Mr Jackson acknowledged that he hadn't seen the stormwater plans and therefore hadn't factored them into his opinion. He indicated that the retaining walls proposed in the vicinity of trees 6 and 6A would be unlikely to cause any damage to the trees. 5. The arborists agree that with the modifications proposed by the applicants during the hearing, i.e. the removal of the north-eastern portion of the dwelling, would enable the retention of tree 7 and avoid the need to plant another Cheese Tree close to the boundary with the neighbour at the rear. 6. The arborists prepared additional draft conditions of consent and marked up the concept landscape plans with suggestions for planting. Civil engineering 1. The civil engineers considered the proposed driveway. The experts agree that the civil engineering plans prepared on behalf of the applicants address particulars (1) and (2) of contention 7 concerning the construction of the proposed driveway including the extent of cut and fill, edge treatments, finished levels, and treatment of the existing carport. They also agree that the geotechnical report prepared by Mr Green indicates that the driveway can be constructed without greater excavation and rock removal than originally thought (contention 7(3)). 2. The engineers disagree on contention 7(4) which states: The construction of a driveway along the Wyee Street road reserve adjacent to the premises could prohibit any future development and road works on this area. Council as the roads authority is not in support of a private driveway being constructed on this area of Wyee Street. 1. Mr Wilcox states he was informed that this is inconsistent with other recent council approved developments in Kogarah Bay. Mr Croft provides the reasons for, and dates of, the developments cited by Mr Wilcox and his reasons for differentiating the circumstances of those approvals from the proposal before the Court. In essence, Mr Croft states that the other developments were approved over 20 years ago under previous controls and for pre-existing lots. 2. While not raised in council's contentions, Mr Croft is also of the opinion that the proposal is potentially unsafe. He opines that there could be collisions between vehicles using the driveway and people using the grassed area of Wyee Street. Further, because of the parking restrictions on the residential side of Parkside Drive and congestion near the park on weekends, anyone parking on the driveway may have to reverse down a steep and winding driveway onto Parkside Drive, which would be dangerous. In Mr Croft's opinion, the driveway should be wholly located on the site. In support of his opinion about the difficulty of parking, Mr Croft provided photographs of busy weekend parking around the park. When questioned by Mr Staunton, Mr Croft accepted that the photographs indicated available parking spaces. Mr Croft also acknowledged that there were no formal proposals for any development of the unformed section of Wyee Street although provision of extra parking spaces had been considered. 3. In reply, Mr Wilcox considers that should the Wyee Street reserve be sold or converted to a park, the location of the driveway along the boundary would not unduly limit either possibility. He disagrees with Mr Croft's views on the safety aspects of the proposal. Mr Wilcox is of the view that the risk of collision is reduced because of the greater sight distance along a longer driveway and its partly elevated position. He notes that the two proposed on-site parking spaces within an enclosed garage meet the requirements of KDCP and that a visitor could park on the turntable and exit the site in a forward direction. 4. The experts agree that if the location of the driveway is not permitted on planning grounds, there is an alternative solution to provide a driveway along the eastern boundary of the proposed Lot 121 within an easement for access. 5. In oral evidence, Mr Wilcox stated that both locations are technically feasible and would meet the relevant standards. He also stated that for safety reasons a 600mm vehicle barrier might have to be installed along the edge, and as the driveway would be used for pedestrian access, a handrail may also be required. Planning Clause 4.6 request for exemption to development standard – Minimum subdivision lot size. 1. Mr Nash prepared the applicants' cl. 4.6 submission to vary the minimum lot size development standard; this submission is attached to the joint report. In considering whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, Mr Nash reiterates the factual dimensions of the lot to be subdivided and of the proposed resulting two lots. The existing lot is distinctly irregular in shape, certainly when compared to the adjoining rectangular lots to the north and west of the site. Those lots generally have 15m wide frontages and a depth of 42m resulting in lot sizes in the order of 630m2. Mr Nash notes other rectangular lots in Wyee Street with areas in the vicinity of 460m2 and other irregular allotments in Parkside Drive and other nearby streets with areas ranging from 300 – 600m2. As such, the existing street pattern is such that many allotments do not conform to the minimum dimensions set out in cl. 4.1 KLEP. Mr Nash therefore considers that the proposed subdivision, in terms of shape and size, is not inconsistent with the existing, established subdivision pattern in the vicinity of the site. 2. Further, Mr Nash describes the lot as being on a corner site with two street frontages to Parkside Drive and Wyee Street, albeit an unmade portion of Wyee Street. He considers that each proposed new lot therefore has an adequate street frontage, the front lot to Parkside Drive and the rear lot to Wyee Street; this then determines lot depth and width. When considered in this way, each new lot more than satisfies the site width requirements, the remaining non-compliance is depth. Mr Nash considers that, in essence, this corner position distinguishes the site from other sites to the west which front Parkside Drive. He also provides examples of where unmade portions of roads in nearby locations have been used to provide access to residential allotments. He supports his position by referring to a series of aerial photographs of residential development in the vicinity. 3. Mr Nash maintains that the minimum subdivision standard in an established urban area must be balanced against the likely built form outcomes determined by planning controls for FSR, building height and landscaped area, as well as achieving orderly and economic use of the land in accordance with the objects set out under s 5 of the EPA Act. Mr Nash considers that the non-compliance with the depth of lot standard does not result in a dwelling with inadequate setbacks, private open spaces and landscaped area. He states that the footprint of the dwelling is modest in scale, responds to the steep topography by stepping up the slope, and achieves compliance with the built form controls, in particular, the FSR is 0.4:1 and well within the 0.55:1 permissible on the site and achieves a landscaped area of 41% - substantially more than the 15% required by the controls. There is a minor intrusion of the height plane at the top of the parapet. Mr Nash maintains the proposed dwelling is compliant on a difficult site. Further, its contemporary design is consistent with the form and style of other new dwellings in the area and will not introduce any adverse impacts on the streetscape of Parkside Drive and Wyee Street. 4. Mr Nash concludes that as a consequence, compliance with the minimum lot size subdivision standards in cl. 4.1(3A) for proposed lots 121 and 122 is unreasonable and unnecessary in the circumstances and there are sufficient environmental planning grounds to justify contravention. Mr Nash states that the proposed subdivision of a large corner block into two compliant lots, both with street frontages, which achieves the built form controls and retains trees, achieves the outcomes of the development standard [which he lists] and achieves the relevant zone objective which is to provide for the housing needs of the community in a low density residential environment. Joint report and oral evidence 1. In their joint report, the planners agree that the proposal: with the exception of lot depth, satisfies the subdivision lot size area development standard; complies with the FSR control; has a minor non-compliance with the building height control but no adverse impacts arise from it; has retaining walls which do not comply with height and design controls; has a numerical non-compliance with the rear setback control; and will require the modification of the existing carport. 2. Mr Latta, the council officer who initially assessed the development application, is of the opinion that the proposed subdivision is not orderly or efficient and is incongruous with the prevalent subdivision pattern, which he contends generally follows the topographical lines of the escarpment. He is particularly critical of the ignoring of the natural boundary provided by the edge of the rock face in order to achieve numerical compliance with the lot size area control. Similarly, Mr Latta is critical of the use of public land in order to provide a driveway, which he considers should be located within the lot. 3. Mr Latta maintains his fundamental concern that the proposed rear lot is very steep and results in a compromised and unviable building footprint upon which to construct a dwelling and which creates an allotment with insufficient areas and dimensions for private open space, setbacks and landscaping. In Mr Latta's opinion the proposal relies upon excessively high retaining walls and excessive excavation which results in a visually intrusive and dominant development that is unsympathetic to the environmental constraints and character of the site. 4. Under cross-examination Mr Latta was questioned on the objectives of the sub-division lot size controls and whether any controls specifically required consistency with the pattern of subdivision. In particular he was taken to the Standard Instrument – Principal Local Environmental Plan (Standard Instrument) which indicates that cl. 4.1 – Minimum subdivision lot size is an optional clause and that cl. 4.1(1)(a) invites any council wishing to incorporate this clause into their LEP to set out their own objectives. Mr Latta was then taken to Lane Cove Local Environmental Plan 2009 which includes a particular objective "to promote consistent subdivision and development patterns in zones". While he conceded a number of matters, including that KLEP did not include such an objective, Mr Latta maintained his objections to the bulk, scale and visual impact of the proposed dwelling. 5. In regards to his objection about the location of the driveway, Mr Latta was taken to the Roads Act 1993 s 6 Right of access to public road by owners of adjoining land which states at s 6(1): The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) access across the boundary between the land and the public road. 1. While Mr Latta accepted this is the case, he maintained his objection to the location of the driveway on public land when it could be accommodated on the site. 2. In the joint expert report, in reply to Mr Latta, Mr Nash disagrees by listing the areas of compliance provided in the cl. 4.6 request. Although there is a minor non-compliance with building height, it has no impact. Mr Nash opines that the pattern of subdivision in the area is diverse in terms of shape and size and that the proposal is not inconsistent with that pattern. Further, although Wyee Street is unformed, the proposed rear lot would have a frontage to a public road. 3. In regards to excavation and visual impact, Mr Nash notes that the amended plans lowered the overall building and that the extent of excavation has been minimised. Mr Nash defers to Mr Green's expertise on geotechnical aspects of the construction. Mr Nash considers that the dwelling will address the Wyee Street frontage however there will only be limited views of it from the park and other parts of the public domain. The privacy of no. 24 will be reasonable as a consequence of the setback and the incorporation of fixed privacy louvres to the windows of the principal living areas so that there won't be any direct overlooking into the rear windows or private open space of no. 24. 4. Under cross-examination, Mr Nash accepted that the courtyards of the north-western boundary would be primarily in shade on the winter solstice. While he acknowledged that there could be some difficulties in accessing the proposed lower landscaped area, in Mr Nash's opinion this could be planted with plants requiring less maintenance and the impact of anyone standing on that garden bed for maintenance purposes would be no more intrusive than anyone accessing the rear elevated areas of the escarpment on other adjoining properties. Similarly he accepts that construction on the site will be challenging and may have a degree of uncertainty but Mr Nash notes Mr Green's opinion that this is not uncommon in many parts of Sydney. 5. In oral evidence it was agreed that the western stairs could be removed and a 1.5m fence incorporated along the western boundary in order to retain more of the natural cliff face, reduce bulk, and further reduce opportunities for overlooking. Similarly, if the proposed lowest level of landscaping did not include a fence above the retaining wall, overshadowing of the rear of nos 24 and 26 would be limited. While Mr Latta maintained his overall objection to the proposal, he accepted that these proposed changes as well as the removal of bedroom 3 in order to retain tree 7 and improvements to landscaping, would be positive. Geotechnical 1. Mr Green participated in the joint conferencing with the planners. As stated above, Mr Nash defers to Mr Green's opinion on matters geotechnical. In the joint report Mr Green notes amongst other things that: the sandstone cliff face does not show signs of significant instability or adverse jointing; rock bedding dips into the cliff face in a favourable orientation; based on experience with other similar sites around Sydney, the slightly to moderately weathered sandstone rocks, subject to verification by geotechnical inspections during construction, do not need significant structural walls; and, if necessary, any rock defects exposed during construction would be subject to a number of possible remedial works. In Mr Green's opinion, a buffer could be retained along the majority of the western boundary. He did note that owner's consent would be required should any works need to be carried out from no. 24. 2. During the site inspection, Mr Green indicated that the proposed driveway could be accommodated without excessive removal of sandstone boulders which straddle the site and the council reserve. He advised that should it be necessary, remedial measures such as rock-bolting could be used to secure the boulder closest to the driveway. Submissions 1. Mr Griffiths for the council contends that in considering s 79C(1)(d), the site is fundamentally unsuitable and the proposed development should be refused. Further, apart from the site constraints, the proposal has unacceptable impacts on the dwelling on the site and on the adjoining property at 24 Parkside Drive. He submits that the applicants have proffered a very blinkered view of the development standard objectives in order to justify the proposal. Mr Griffiths argues that mere compliance with DCP controls, which are subordinate to the LEP, is no guarantee of a good outcome. He maintains that the very significant breach of the lot depth control in KLEP has resulted in a visually bulky and intrusive development which will impact on both 26 and 24 Parkside Drive. Mr Griffiths stresses that given the artificially relocated boundary, no. 26 will be unable to protect itself from this visual bulk, and try as it may, the proposed development is unable to position itself away from the existing dwellings at 24 and 26. In addition, Mr Griffiths contends that the geotechnical aspects of the proposal are uncertain and will require constant monitoring and possibly expensive remediation works. 2. Council's position is that the cl. 4.6 variation has not adequately addressed the non-compliance with site depth and does not demonstrate that compliance with that control is unreasonable or unnecessary. Mr Griffiths maintains that neither does it provide sufficient environmental planning grounds to justify the contravention. 3. Mr Griffiths notes Mr Nash's admission of the poor solar access to the courtyards on the western portion of the site, as well as the fragmented nature of private open space to reinforce council's argument that the proposal does not provide suitable amenity. He also draws attention to the areas of landscaping that will be difficult to access for maintenance or use. 4. In regards to the driveway off Wyee Street, and the alleged precedent of other examples of access to private property across unmade roads such as 33 Wharf Road, Mr Griffiths presses the uncontested evidence of Mr Croft and Mr Latta who stated that 33 Wharf Road was an existing lot which has enjoyed access from Carlton Crescent prior to recent redevelopment. Mr Griffiths argues that Mr Nash has been unable to provide any examples, by way of precedent, of what the applicants propose. He contends that this is not a case of having to build on the road reserve as a driveway could be constructed on the site; however, this would exacerbate the non-compliance with lot size. 5. While Mr Griffiths accepts that the retention of Tree 7 is worthwhile, Mr Griffiths submits that there is no guarantee of its survival given the likely geotechnical uncertainties identified in the geotechnical report. 6. In conclusion, Mr Griffiths reiterates council's fundamental objection to this proposal because of the unsuitability of the site, the level of uncertainty, the use of public land for private access, as well as its bulk and scale and the visual impacts on adjoining properties. 7. Mr Staunton for the applicants contends that the starting point for determination is the LEP, in particular the gateway created by any development standard and any request for a variation to that standard in accordance with cl. 4.6. Mr Staunton rejects council's complaints about Mr Nash's written cl. 4.6 request for an exception to the minimum lot size development standard which he submits addresses all matters required to be considered and is well-founded and should be upheld. 8. In further submissions, Mr Staunton contends that the objectives of the development standard are met because: by achieving the lot size area of 500m2 for each lot, the proposal promotes the efficient use of land (objective (a)); the council has not provided any evidence of any proposal to sell or develop the R2 zoned Wyee Street and thus the subdivision does not prevent the orderly development of land (b); despite the non-compliance with lot depth, each lot achieves an adequate street frontage, and adequate dimensions on which to construct a mostly compliant development (c); and is within the environmental capability of the land as reflected by its zoning and therefore the specified minimum lot size area (as opposed to land zoned for its environmental values and which requires a larger minimum lot area for subdivision)(d). 9. In regards to the DCP controls, Mr Staunton highlights s 74BA of the EPA Act which states that the principal purpose of a DCP is to provide guidance on matters which give effect to the aims of any environmental planning instrument and which facilitate development permissible under any such instrument. In this case, he contends the degree of compliance with the DCP controls the achievement of the objectives of the development standard. 10. Mr Staunton presses the acceptance by Mr Latta that council has not adopted specific objectives requiring consistency with the existing sub-division pattern. He notes the extracts from the zone map and the aerial photographs which show a diversity of lots including many of irregular shape. 11. Concerning contention 2 and the impact of excavation, Mr Staunton contends there is no quantitative limitation in any control and the evidence of Mr Green deals with the concerns raised by council. He submits that Mr Latta is not a geotechnical engineer, and rather than being natural surfaces, the site has been modified as it was a former quarry. Mr Staunton asserts that should the amended proposal be accepted, there is now a 1.2m setback from no. 24. The advice from Mr Green is that the remaining rock face can be managed. 12. Contention 3 goes to visual impact of bulk and scale. Mr Staunton argues that s 79C(3A)(a) states that if a development complies with a set standard in a DCP, then the consent authority cannot impose more onerous standards. Further, s 79C(3A)(b) requires the consent authority to be flexible in applying those standards. Mr Staunton contends that: the garage is not within a basement; the retaining walls, although they exceed 1m in height, will be designed by a suitably qualified structural engineer, and given the orientation of the proposed dwelling they will be barely visible from the public domain. He notes that the relevant control does not seek to protect the view of retaining walls from the private domain. In regards to the setbacks, the side setbacks comply; Mr Staunton submits that the rear setback complies in part but given the single storey nature of the rear of the proposed dwelling and the proposed landscaping, there are no adverse impacts on the adjoining property to the rear. 13. In regards to the remaining contentions, Mr Staunton maintains that they have been satisfactorily addressed, in particular: he notes Mr Latta's agreement that the louvres will minimise any overlooking of the rear of no. 24 from the principal living areas; if a condition of consent were to be imposed to prevent the erection of a fence on the lowest garden bed, overshadowing of existing dwellings would be overcome; the arborists have agreed that with the suggested changes to the dwelling layout, tree 7 can be retained and a detailed landscape plan be prepared; the stormwater issues have been fully resolved; and further information has been provided to address the deficiencies identified by council. 14. Mr Staunton submits that contention 7 concerning the driveway has been dealt with however Mr Croft has introduced concerns about safety which were not part of council's contention. He contends that a compliant number of spaces have been provided and that a visitor can use the turntable to leave the site in a forward direction. Mr Staunton notes Mr Croft's admission that even on a busy day at the park, photographs show the availability of street parking. Ms Staunton presses Mr Wilcox's opinion over Mr Croft's. In regards to the use of Wyee Street, Mr Staunton asserts that this is permitted under s 6(1) of the Roads Act 1993. Further, the road is zoned R2, roads are a permitted use in the zone; in citing BGP Properties Pty Ltd v Lake Macquarie Council [2004] NSWLEC 399, at [115]-[117] Mr Staunton submits that if land has been zoned and thus identified as suitable for a particular use, weight must be given to that zoning. If the road had been formed, access would be available by a conventional driveway. Mr Staunton contends that the driveway is permissible and will not prohibit the use of Wyee Street for other purposes. 15. In conclusion, Mr Staunton submits that the only applicable LEP control is lot depth and for the reasons provided by Mr Nash, strict compliance with that element of the control is unnecessary in the circumstances; and given the extent of compliance with KDCP, the proposal is capable of approval. Mr Staunton requests that in the light of the changes discussed during the hearing, the Court might take an "amber light" approach and make directions for the preparation of plans and or conditions of consent that would formalise those amendments. Findings Clause 4.6 variation request 1. A key issue in these proceedings is the non-compliance with the lot width and lot depth requirements in cl. 4.1(3A)(a) being the development standard in KLEP for minimum subdivision lot size for land in Zone R2 – Low Density Residential. I note that this is the only development standard adopted by council from the Standard Instrument. 2. As a consequence of this non-compliance, cl. 4.6 Exceptions to development standards, applies. As stated by Morris C in Micaul Holdings Pty Limited v Randwick City Council [2015] NSWLEC 1386 at [56], cl. 4.6 imposes a precondition on the consent authority exercising the power to grant consent to development on land to which the clause applies. As the consent authority, if the Court is not satisfied that the provisions of the clause are not met, consent must not be granted. 3. Clause 4.6 states: (1) The objectives of this clause are as follows: (a) To provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) To achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) That there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) The consent authority is satisfied that: (i) The applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) The proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is to be carried out, and (b) The concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) Whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) The public benefit of maintaining the standard, and (c) Any other matters required to be taken into consideration by the Secretary before granting concurrence. 1. In accordance with cl. 4.6(3) I have considered the written request prepared by Mr Nash on the applicants' behalf that seeks to justify the contravention of the development standard for minimum subdivision lot size in the terms set out in subclauses 4.6(3)(a) and (b). This submission is summarised in [43]-[46]. 2. Having considered the written request, as required by cl 4.6(4)(a), I am satisfied that the written request has adequately addressed the matters required to be demonstrated by subclause 4.6(3)(a) and (b) and that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and with the zone objectives. My reasons are as follows. 3. As considered by Mr Nash, the site is large but irregular in shape; the irregularity is a function of it being a corner lot, albeit one axis being along an unformed road, and which distinguishes it from other more rectangular lots nearby. The figures attached to the written request show the unformed Wyee Road as defining the diagonal nature of the eastern boundary. Irregularly shaped lots are not uncommon in the vicinity. The resulting subdivision results in two lots with a compliant area and within the range of other lots sizes within the vicinity. In orienting the lots to their respective street frontages, the lot depth is the only element of non-compliance. There are a number of unformed roads on which access to lots has been established in the past. Despite the non-compliance with the depth element of the KLEP development standard, it is sufficient to accommodate the proposed new dwelling which has a relatively modest footprint, complies with the majority of principal planning controls in KDCP, in particular FSR and side setbacks, and is consistent in form and style to other new dwellings in the area. As a consequence, the two compliant lots promote the efficient use of land, do not prevent orderly development of the land, provide an adequate street frontage and lot dimension and are within the environmental capability of the site; that is, the proposal meets the objectives of the sub-division minimum lot size development standard. By providing an additional dwelling on a lot with a compliant area, the proposal meets the relevant zone objective for meeting the housing needs of the community in a low density residential environment. 4. In regards to cl. 4.6(4)(b) which requires the concurrence of the Director General, and cl. 4.6(5) matters to be considered by the Director General, no submissions were made by either party. It is generally considered that the Court can assume concurrence. 5. Therefore, having found that in the particular circumstances of this case that compliance with the minimum subdivision size, lot depth control, is unnecessary and that adequate reasons have been provided for me to reach the requisite level of satisfaction, I must consider relevant matters under s 79C of the EPA Act. Section 79C 1. The principal environmental planning instrument applying to this site is KLEP. As considered above, and agreed by the planners, the proposal is permitted in the zone and is consistent with the zone objectives. The southern section of Wyee Road is zoned R2, roads are a permitted use in the zone. The only development standard to be adopted from the Standard Instrument is the one considered by the cl. 4.6 request for an exception. That is, all other standard controls such as FSR and building height are contained within KDCP. As stated above, I am satisfied that despite the non-compliance with the site depth element, the proposal meets the necessary objectives, in particular the provision of adequate street frontages and dimensions for standard lots. I note Mr Staunton's submission that council did not adopt any specific objective requiring consistency with the established sub-division pattern. 2. KLEP cl. 6.2(3) requires the consent authority to consider a number of specified matters before granting development consent for earthworks. The objective of this clause is to ensure that earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. As a key issue for the council is the suitability of the site and the extent of excavation, I make the following findings (sub clauses in brackets) on each of the relevant matters in the light of the objectives of the clause. * There is no evidence that there will be any detrimental impact on drainage patterns or soil stability (6.2(3)(a)). The stormwater engineers have agreed on an appropriate stormwater plan. Mr Green does not identify any particular concerns about drainage or soil stability but comments on options to minimise or avoid any issues. Mr Wilcox states in the Construction Management Plan (CMP) he prepared (Exhibit C) that the soil is likely to be shallow sandy clay overlying sandstone bedrock. The CMP identifies how this is to be managed. * The development of the land is for the purpose of constructing a new dwelling. Council's concerns go to the use of Wyee Street to provide access. I accept the applicants' position that the location of the drive along the boundary will not unreasonably prevent any redevelopment of Wyee Street and I note that the council has not proffered any evidence of any formal plans to sell or redevelop the southern section of Wyee Street. The civil engineers and Mr Green consider the extent of cut and fill to be relatively minor (6.2(3)(b)). * The CMP identifies that the material to be cut is sandy clay over sandstone. There is no indication of the nature of the fill. No evidence was advanced as to why this may be an issue however this could be addressed by a condition of consent (6.2(3)(c)). * There will be some impact on the amenity of the adjoining properties, both visual and acoustic during earthworks. I am satisfied that the increased setback from the western boundary and retention of more of the sandstone will reduce the visual impact. I accept the uncontested evidence of Mr Green in regards to proposed excavation methods and the nature of remedial measures to ensure any unnecessary impacts are avoided. The CMP also discusses methods of minimising impacts on amenity (6.2(3)(d)). * The source of fill or destination of excavated material has not been indicated, however this could be conditioned (6.2(3)(e)). * During the site view, I was advised that the council considered the likelihood of disturbing any relics to be remote as the site has undergone significant disturbance in the past. Part of the site has been quarried as has the escarpment enclosing the southern end of Wyee Street (cl. 6.2(3)(f). Similarly the potential for adverse impacts on waterways or environmentally sensitive areas was not raised (6.2(3)(g)). * Both Mr Green and Mr Wilcox have provided expert advice on appropriate measures to avoid, minimise or mitigate the impacts of the development. The arborists have agreed that it is possible to retain Tree 7, however this will require the imposition of a condition of consent requiring an arborist to be on site during any excavation near any of the trees to be retained (cl. 6.2(3)(h)). 1. Having considered the requisite matters in cl. 6.2(3), and with the benefit of the expert evidence, while I accept that the site is topographically challenging, I also accept Mr Green's opinion that what is proposed is not uncommon in the coastal parts of Sydney. I also note that there are a number of recently constructed dwellings and dwellings under construction on steep rocky sites in nearby streets. I am satisfied that the proposal should not be refused on this basis. However, appropriate conditions of consent must be imposed to avoid, minimise or mitigate any adverse impacts of any earthworks, in particular the excavation of the sandstone escarpment. 2. Considering the proposal to use part of the Wyee Street road reserve to provide access to the site, I accept the evidence of the civil and geotechnical engineers that it is feasible. Council's contention goes to the use of public land rather than using part of the site. It is clear that placing the driveway on the site would effectively prohibit the development as rear lot would be classified as a battle-axe block which requires a minimum site area of 600m2. I was not taken to any part of any council control, or policy that would limit the application of s 6(1) of the Roads Act 1993. As stated elsewhere, there is no evidence of any plans for the development of the unformed road reserve. I also accept Mr Wilcox's opinion that there is sufficient room on site for three vehicles and the turntable can be used to enable a vehicle exiting the site to do so in a forward direction. Any necessary safety barriers and or handrails are to be installed. Therefore I am satisfied that the proposal should not be refused on these grounds. 3. In regards to the DCP controls which go to council's contentions on bulk, scale, visual amenity, overshadowing, landscaping and retaining walls, it is common ground that the minor non-compliance with the height control has no detrimental impact on surrounding properties. I am satisfied that with the proposed amendments of removing the western stairs and bedroom 3 that the overall footprint is reduced, the FSR is further reduced and the setbacks are sufficient to achieve the relevant objectives of the controls of maintaining reasonable amenity for neighbours and access to sunlight. The rear setback now retains the dominant tree canopy on the site. 4. I agree with the council that the private open space (in particular the courtyard in the south-western corner of proposed lot 122) do not receive the amount of solar access specified in KDCP cl. 1.6. Of its own, it is not a reason for refusal. I note that the south-western courtyard is indicated on the landscape plans as being a lawn area. With the horticultural expertise I bring to the Court, this is highly unlikely to be successful, even with shade tolerant turf. I note that the arborists have identified this as a problem and have marked up the landscape plan to indicate that lawn areas are to be replaced by mass plantings of shrubs, ground covers and perennials. Given the limited solar access to parts of the site, the landscape plan is to be amended to include suitable shade tolerant species. The detailed landscape plan should also include the type and location of means of access, for example stepping stones or paths. The landscape plans and or conditions are also to specify the installation of appropriate irrigation and drainage systems to service all planter boxes and terraced landscape areas. 5. It is agreed that the height of the retaining walls in some sections exceeds the 1.0m height limit. I accept the applicants' submissions that the controls go to the visibility of high walls from the public domain. I agree with Mr Nash that the retaining walls on the site are unlikely to be visible, to any great extent, from Parkside Drive or the park. I also note that KDCP cl. 1.2.2 anticipates development on steep sites. In the circumstances, having slightly higher retaining walls on steeper sites limits the extent of terracing and therefore excavation required. 6. Council's primary concern with this proposal is the suitability or otherwise of the site for the development. As noted above, I agree that the site is challenging however the weight of the evidence is that it is achievable and not inconsistent with other nearby development. The proposed further reduction in the footprint with the resulting retention of tree 7 and increased rear setback is beneficial. KDCP cl. 1.2.4.3 anticipates varying rear setbacks if it will result in the retention of significant trees. 7. While I accept that there will be a visual impact of the development on the adjoining property at no. 24, and on the applicants' current dwelling at 26, I am satisfied that the setbacks, removal of stairs, retention of more cliff, provision of landscaping and the fixed privacy screens will mitigate that impact and certainly limit the opportunities for overlooking. I note that because of the general compliance with FSR, height, building envelope and so on, the visual privacy control in KDCP 1.5.1 (6) would not be engaged. As discussed during the hearing, given the relative proximity of the upper balcony on the upper level of 26 to the proposed driveway, any potential light spill from headlights could be avoided by controlling the direction of the turntable. Conclusions and directions 1. Having considered the requisite matters, and having heard the evidence and submissions, I am satisfied that consent can be granted subject to the provision or conditioning of plans showing the proposed architectural modifications, and more detailed landscape plans. The removal of bedroom 3 and the retention of Tree 7 will also require an amendment of the stormwater plans. The parties are also to agree on conditions which give effect to this decision. I note that during the hearing the parties discussed and agreed on a number of conditions. 2. Therefore, the parties are directed to: 1. Provide the Court with amended plans and or conditions of consent which give effect to the findings in this judgment by close of business 29 September 2016. Any plans filed electronically are to be in pdf; conditions are to be in word.docx with no headers/ footers or tracked changes. Final orders will be made in chambers on 30 September 2016. Final orders 1. The applicant filed amended plans that formalise the changes offered by the applicant during the proceedings and which reflect the findings in this judgment. I was taken to the changes. While the plans show an access way to the lower garden bed, this is not required and council has imposed a condition for it to be deleted; the applicant agrees to this condition. The stormwater plans have been amended to avoid damage to Tree 7. The landscape plan has been amended to include a more appropriate mix of species and to illustrate that access can be provided to the rear garden. An agreed set of conditions was also filed in court. The conditions also extend the role of the arborist in regards to earthworks in the vicinity of tree 7. 2. Therefore, as a consequence, the Orders of the Court are: 1. The applicant is granted leave to rely on the amended plans filed in court on 30 September 2016 and which are described in condition 1 in Annexure A. 2. Pursuant to s 97B of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondent's costs thrown away as a result of the amended plans in the agreed sum of $2000 within 28 days of the date of these orders. 3. The clause 4.6 submission in relation to minimum subdivision lot size prepared by KN Planning Pty Ltd is upheld. 4. The appeal is upheld. 5. Development consent is granted to Development Application No. 172/2015 for the Torrens Title subdivision of one lot into two lots and the erection of a new dwelling on a new rear lot and associated works at 26 Parkside Drive, Kogarah Bay subject to the Conditions of Consent set out in Annexure A. 6. The exhibits except A, D and 1 are returned. ________________________ Judy Fakes Commissioner of the Court 163044.16 Conditions of consent (275 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: 30 September 2016