Land and Environment Court New South Wales Medium Neutral Citation: Rudder Developments Two Pty Ltd v Inner West Council [2017] NSWLEC 1132 Hearing dates: 13-14 March 2017 Date of orders: 16 March 2017 Decision date: 16 March 2017 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. D/2016/10 for a subdivision into 6 lots at 37 Edna Street, Lilyfield, is refused. 3. The exhibits, other than exhibits 1 and B, are returned. Catchwords: DEVELOPMENT APPLICATION: subdivision; the planning principle in Parrott v Kiama [2004] NSWLEC 77 re-endorsed by the Commissioners of the Court; inconsistency with the size and pattern of allotments in the area; whether the subdivision will result in uncharacteristic future development. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Heritage Act 1977 Cases Cited: Parrott v Kiama [2004] NSWLEC 77 Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167 Category: Principal judgment Parties: Rudder Developments Two Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: Mr G. McKee solicitor (Applicant) Mr M. Bonanno solicitor (Respondent) Solicitors: McKee Legal Solutions (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2016/229006 Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2016/10 for the subdivision of the site into six lots (the proposal) at 37 Edna Street, Lilyfield (the site) by Inner West Council (the Council). 2. Two appeals were subject to mandatory conciliation on 14 November 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated on the same day, pursuant to s 34(4) of the LEC Act. Leave was granted by the Court on 29 November 2016 for the applicant to rely on an amended proposal for the subdivision of the site into six lots including building envelopes for lots 1 and 2. The second appeal against the deemed refusal of Development Application D/2016/9 for the construction of six semi-detached dwellings on the six lots was discontinued. 3. Leave was unopposed and granted by the Court at the commencement of the hearing for the applicant to rely on a further amended proposal (issue D, exhibit B). Issues 1. The Council's contentions can be summarised as: * The design of the proposed subdivision is inappropriate with regard to the site's context and would result in an uncharacteristic future development. The proposed size of the allotments are the minimum lot size and are not consistent with the size and pattern of lots in the area and there is uncertainty whether the allotments would be compatible with the desired future character of the area. * The proposed building envelopes for Lots 1 and 2 are inconsistent with the relevant planning controls. * The earthworks proposed with the subdivision are extensive and the application does not also seek approval for the construction of dwellings. The site and its context 1. The site is an irregular rectangular shape, with a frontage to Edna Street of 17.17m and Piper Street of 55.62m, with an area of 1224sqm. The site has a splayed corner to Piper and White Streets. 2. The site is at the northern end of the block bounded by Edna Street, Piper Street and White Street. White's Creek Valley Park is to the east of the site. The site falls to the east. There is an existing retaining wall along the White Street boundary. 3. The White's Creek aqueduct runs across the property to the south of the site. Background and the proposal 1. The site was subdivided from nos. 35-37 Edna Street, being surplus to the needs of Sydney Water and remediated. 2. The proposal seeks approval for Torrens Title subdivision of the existing lot into six lots, including associated civil infrastructure works and earthworks. The proposal includes the demolition of part of existing retaining walls along White Street and Piper Street. 3. Lots 1 and 2 are on the western side of the site and front Edna Street. Lots 3 and 4 are oriented north-south and front Piper Street. Lots 5 and 6 are on the eastern side of the site and front White Street. 4. The proposed six Torrens Title lots are described as following: Lot Number Site Area sqm Site Width m Site Depth m 1 200.14 9.48 21.485 2 200.38 7.695 street 21.485 3 209.4 10.48 19.645 4 214.08 10.48 20.97 5 200 11.285 19.775 6 200.01 11.03 19.525 1. The proposal includes benching and retaining walls for each allotment through the use of cut and fill so that each allotment contains a single bench level, other than lots 1 and 2. 2. Lots 1 and 2 include an indicative building footprint. 3. The proposed levels fall to the east, with Lot 1 RL12.51, Lot 2 RL13.2, Lot 3 RL12.1, Lot 4 RL11.0 and Lot 5 RL9.9 (exhibit B, DA300, Site Benching Section 01 and 02). Planning framework 1. The site is within the vicinity of a State heritage item, the White's Creek Aqueduct, listed on the State Heritage Register (SHR) and protected under the Heritage Act 1977 (NSW). There are no contentions raised in relation to the White's Creek aqueduct. The statement of significance for the White's Creek Aqueduct is as follows: The Whites Creek sewage aqueduct was completed in 1897 and is a major and highly visible component of the Northern Main Sewer extension of the Bondi Ocean Outfall Sewer. The arches and carrier of the aqueduct are one of the first major constructions undertaken using reinforced concrete in NSW and one of the first in Australia. The slender proportions of the supporting arches and sewage carrier along with its historical technology value are a major landmark for Sydney. The aqueduct is a major element of the historic built environment of the local area, and a long held part of the recreational reserve. Elements of significance are the past and ongoing use, technology of construction and setting (inclusive of views) within the park reserve. 1. The site is zoned R1 General Residential under Leichhardt Local Environment Plan 2013 (LEP 2013) and the proposal is permissible with consent. The relevant objectives of the R1 zone are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. • To provide landscaped areas for the use and enjoyment of existing and future residents. • To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area. • To protect and enhance the amenity of existing and future residents and the neighbourhood. 1. The minimum subdivision lot size is 200sqm (Lot Size Map Sheet LSZ_004 LEP 2013). The objectives for the minimum subdivision lot size, at cl 4.1, are: (a) to ensure that lot sizes are able to accommodate development that is consistent with relevant development controls, (b) to ensure that lot sizes are capable of supporting a range of development types. 1. The Leichhardt Development Control Plan 2013 (DCP 2013) includes, at C1.6 Subdivision, control 2, 'New allotments shall be consistent with the prevailing subdivision pattern in the neighbourhood', and control 11, 'Where the subdivision will result in either a vacant site or demolition of an existing building, the application must also include a development application for a new dwelling/s'. 2. The site is within the Lilyfield Distinctive Neighbourhoods area identified by DCP 2013 at C2.2.4. Front setbacks for single dwellings are to be consistent, between 1m and 3m. Control 3 relevantly states, 'Promote the consistent rhythm in the residential streetscapes created by the regular allotment sizes, predominance of detached dwellings and predominance of hipped and gabled roof forms'. Public submissions 1. Three resident objectors provided evidence at the commencement of the hearing on-site. Their objections to the proposal can be summarised as: * The site should be divided into 4 lots and not 6 as proposed by the Water Board when the site was sold; * The proposal for 6 lots is an overdevelopment of the site which is inconsistent with the character of the area and will result in additional cars being parked on the street; and * The development on lots 1 and 2 (fronting Edna Street) should only be a single storey when viewed from Edna Street, due to the fall of the site. Expert evidence 1. The applicant relied on the expert planning evidence of Mr Andrew Minto and the Council relied on the expert planning evidence of Ms Kerry Gordon. The experts prepared a joint report (exhibit 2). 2. The applicant relied on the expert flood engineering evidence of Mr Bruce Kenny and the Council relied on the expert flood engineering evidence of Mr James Ogg. The experts prepared a joint report (exhibit C). The experts agreed that the flood related issues do not preclude future development of the site and that the contentions raised by Council in relation to flooding can be dealt with by imposing appropriate conditions of consent on a future application for the development of Lot 6. They agreed that the 100 year average recurrence interval (ARI) flood level is at RL7.5 (AHD) adjacent to Lot 6 in White Street and that the flood planning level for the site is RL8.0. I accept their agreed expert evidence and a section through the driveway cross-over for Lot 6 (exhibit D) demonstrates that this can be achieved. Consideration 1. The fundamental disagreement between the parties is whether the application to subdivide the site should be accompanied by an application for the proposed dwellings on the six lots. The Council's position is that the site should be subdivided into four east-west oriented lots, two fronting Edna Street and two fronting White Street. 2. It is the applicant's evidence and submission that the proposal provides lots which are compatible with the surrounding locality, that are conventional in their proportions and layout and greater than the minimum lot size of 200sqm and are therefore able to accommodate development that is consistent with relevant development controls. 3. It is the Council's evidence and submission that the lots are smaller and shallower than the majority of lots within the surrounding area and that the future development of the lots is likely to result in dwellings and open space which cannot achieve acceptable solar access. 4. Ms Gordon's interpretation of the "surrounding area" referred to in the R1 zone objective for subdivision is illustrated in her analysis of 91 properties surrounding the site (exhibit 6). Of those properties, 72% have a site area above 250sqm. I accept her interpretation of surrounding area as being greater than a 'visual catchment' analysis. I also accept the applicant's submission that the area as defined must also include the anomalous properties. It is a fact that the proposed lots are not typical of the size or proportions of the majority of the properties in the surrounding area; but in the context of there being a wide variety of housing types and forms in the vicinity of the site, I do not consider that this is fatal to the application, primarily because the proposal does comply with the minimum lot size in LEP 2013 and smaller lots potentially complement the variety of housing types and densities in an area. However, to provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas; smaller lots require careful and constrained design solutions. 5. I do not entirely agree with Mr Minto that the discrepancies in lot depths and areas with surrounding lots is typically only evident from a cadastral examination and the streetscape presentation of the proposal, which is dictated by the allotment widths, is more important, and together with future built form dictates residential character. A shallow lot requires an alternative arrangement for the building form on the site or it results in the amenity of the dwelling being significantly compromised. 6. I accept Ms Gordon's evidence that subdividing the site into four lots would be consistent and compatible with the existing subdivision pattern of the surrounding area and that those four lots would be less constrained that the six lots proposed. In my view, an application for a subdivision of four lots as described by Ms Gordon (exhibit 2, par 2.3.15) could be approved without constraints on the future building envelopes for those lots. Planning principle in Parrott v Kiama [2004] NSWLEC 77 (Parrott planning principle) 1. The parties both relied on the Parrott planning principle. Mr McKee submits that the proposal does not raise any of the constraints described by the Parrott planning principle and so it is appropriate in the circumstances to permit the applicant to subdivide the land without an application for the development of those lots. Mr Bonanno submits that as the proposed lots are smaller than usual and future development of each lot is likely to result in amenity impacts on the adjoining lots, it is appropriate that the proposal includes a development application for the development proposed on each lot. 2. The Parrot planning principle by [former] Senior Commissioner Roseth relevantly states the following at [17]: When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them. 1. The Commissioners of the Court have considered the planning principle set out in Parrott and have expressly concluded that that planning principle remains relevant and should be retained (Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167 [30]-[31]). 2. I prefer and accept Mr Bonanno's submissions in relation to the necessity to consider the development of the proposed lots at the same time as granting consent to the subdivision of the site into six lots, in order to ensure that the amenity, particularly solar access, of each dwelling is maximised. 3. I am of the view that the six lot subdivision may be satisfactory, however, each of those six lots are significantly constrained by the floor space ratio development standard of 0.5:1 (Floor Space Ratio Map FSR_004 LEP 2013) for the site requiring a gross floor area of approximately 100sqm; and the proportions, orientation and fall of the lots, resulting in each lot having the potential to significantly impact on the amenity of adjoining lots, particularly if the gross floor area exceeds the development standard. In my opinion, skilful design is needed to minimise those impacts and to maximise the amenity of each dwelling within a constrained building envelope. For this reason, I do not accept the applicant's submission that control 11 at C1.6 of DCP 2013 requiring a subdivision application to include a development application for the proposed development be set aside. If the site is subdivided and the resulting lots individually sold, each dwelling will be individually planned. It is my view that the design of the six dwellings should to be undertaken in unison because the constraints of the small lots means that each dwelling and external space presents as a puzzle where each piece is intimately interrelated. 4. I am not satisfied that the proposed covenant in condition 35 (exhibit E) regarding constraints on the future development of the lots is adequate to ensure the appropriate development of the six lots. 5. While the layout of the site is a matter for a future application, the optimum outcome for each lot in a six lot subdivision is not going to be achieved with a conventional site layout of a dwelling with a front setback and backyard, because solar access will be compromised by the orientation of the site. The indicative building footprint for lots 1 and 2 would result in a poor outcome. The north-south lots should have a building footprint on the western side of the site opening onto outdoor living on the eastern side of the site, with a parking space at the front of the site on the western side; and the east-west lots have building footprint on the southern side of the lot opening onto outdoor living on the northern side and parking space at the front of the site adjacent to the shared boundary of the adjoining lot. This would achieve contemporary development appropriate to the scale and proportions of existing development in the surrounding area. The site enjoys an undeveloped property to the south containing the State heritage listed aqueduct, which provides an opportunity for minimum setbacks to the south. Conclusion 1. I accept that dividing the site into six lots is both permissible and achievable; however, I accept the Council's submission that the constraints of the site dictate a requirement for a development application for the proposed dwellings on those lots to ensure the equitable distribution of amenity across the six lots, which can only be achieved by careful and skilful design of the dwellings in unison. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. D/2016/10 for a subdivision into 6 lots at 37 Edna Street, Lilyfield, is refused. 3. The exhibits, other than exhibits 1 and B, are returned. ____________ Susan O'Neill Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2017