Mustaca and ors v Ku-ring-gai Council [2017] NSWLEC 1235

Land and Environment Court New South Wales

Medium Neutral Citation: Mustaca and ors v Ku-ring-gai Council [2017] NSWLEC 1235 Hearing dates: 8-9 May 2017 Date of orders: 11 May 2017 Decision date: 11 May 2017 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Development Application No. 0102/16 for the re-subdivision of two existing lots into a different configuration of two Torrens Title lots and the retention of the existing dwelling on one lot at 37 Trafalgar Ave, Roseville, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: re-subdivision of existing lots, undersized lot; heritage conservation area. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Wehbe v Pittwater Council (2007) 156 LGERA 446 Category: Principal judgment Parties: Catherine Mustaca, Rossano Zaurrini, Francesca Mustaca, Berge Nalbandian (Applicant) Ku-ring-gai Municipal Council (Respondent) Representation: Counsel: Mr M. Staunton Barrister (Applicant) Dr J Smith Barrister (Respondent)

Solicitors: Thomson Geer Lawyers (Applicant) Shaw Reynolds Lawyers (Respondent) File Number(s): 2016/383344 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0102/16 for the re-subdivision of two existing lots into a different configuration of two Torrens Title lots, in order to retain the existing dwelling on a single lot (the proposal) at 37 Trafalgar Ave, Roseville (the site) by Ku-ring-gai Council (the Council). Issues 1. The Council's contentions can be summarised as: * The proposal results in an undersized allotment and the written request to vary the standard does not satisfy the provisions of the clause; * The proposal is inconsistent with the existing subdivision pattern within the heritage conservation area and will have an adverse impact on the heritage significance of the Clanville Conservation Area; * The proposal results in an unacceptable outcome for the existing building which is contributory to the heritage conservation area. 1. Council's contentions regarding vehicular access to Lot 42 and stormwater are not pressed. The site and its context 1. The site is on the northern corner of Trafalgar Avenue and Marjorie Street, Roseville. The existing allotments that comprise the site are orientated north-east to south-west, fronting Trafalgar Avenue. 2. The existing dwelling straddles the two existing lots and fronts Trafalgar Avenue. A two storey addition has been made to the northern end of the original house. Background and the proposal 1. The proposal is to re-subdivide the site, which consists of two existing lots fronting Trafalgar Street, to create two lots orientated north-west to south-east, Lots 41 and 42, to retain the existing dwelling on Lot 41 by demolishing the rear porch. A future dwelling on Lot 42 would have access from Marjorie Street. Lot 41 is 902.7sqm and Lot 42 is 724sqm with a frontage width of 19.8m. Planning framework 1. The site is zoned R2 Low Density Residential pursuant to Ku-ring-gai Local Environment Plan 2015 (LEP 2015) and the proposal is permissible with consent. The objectives of the R2 zone, to which regard must be had, 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 housing that is compatible with the existing environmental and built character of Ku-ring-gai. 1. The relevant aims of LEP 2015 at cl 1.2(2) are as follows: (a) to guide the future development of land and the management of environmental, social, economic, heritage and cultural resources within Ku-ring-gai, (f) to recognize, protect and conserve Ku-ring-gai's indigenous and non-indigenous cultural heritage, (l) to facilitate development that complements and enhances amenity for residential uses and public spaces. 1. Development consent is required for subdivision, at cl 2.6 of LEP 2015. The objectives of the minimum subdivision lot size provision, at cl 4.1 of LEP 2015, are: (a) to ensure that lot sizes are able to accommodate development consistent with relevant development controls and minimise risk to life and property from environmental hazards, including bush fires, (b) to ensure that lot sizes and dimensions allow development to be sited to protect natural or cultural features including heritage items, remnant vegetation, habitat and waterways, and provide for generous landscaping to support the amenity of adjoining properties and the desired character of the area, (c) to ensure that subdivision of low density residential sites reflects and reinforces the predominant subdivision pattern of the area. 1. The minimum lot size for the site is 790sqm with a width of at least 18m (along a line 12m from the street frontage). 2. Clause 4.6 Exceptions to development standards is in the following terms: (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 proposed to be carried out 1. The site is located within the Clanville Conservation Area (Clanville CA, labelled C32 on the heritage map and listed in schedule 5, LEP 2015) and within the vicinity of a heritage item at 26 Trafalgar Avenue, Roseville (item 711, schedule 5, LEP 2015). Clause 5.10 of LEP 2015 requires development consent for the subdivision of land within a heritage conservation area, at (2)(f). The relevant objectives of the heritage conservation clause are to conserve the environmental heritage of Ku-ring-gai and to conserve the heritage significance of heritage conservation areas, including associated fabric, setting and views. It is a pre-condition to the grant of consent that the consent authority considers the effect of the proposed development on the heritage significance of the area concerned, at (4). 2. Ku-ring-gai Development Control Plan 2016 (DCP 2016) includes, at 3A.1 objectives and controls for lot shape, orientation and design, including limiting the impact of new development on cultural significance and ensuring that subdivision patterns, building footprints and siting respect the characteristic street address rhythm and built form spacing of its locality. 3. DCP 2016 includes, at 4A.2 Building setbacks, objective and controls for setbacks, which are relevant to the consideration of the future development of Lot 42 and the proposed 1.5m setback of the existing dwelling to the shared boundary between lots. Public submissions 1. Four resident objectors provided evidence at the commencement of the hearing on-site and the Court, the parties and their experts viewed the site from the rear yard of 41 Trafalgar Avenue. Their objections to the proposal can be summarised as: * The proposal will have an adverse impact on the heritage significance of the Clanville CA; * The proposal is uncharacteristic in the Clanville CA; * The proposed subdivision will result in an additional dwelling which will have impacts on the privacy and amenity of adjoining properties; * The resulting second lot is undersized and this exacerbates privacy and amenity impacts on adjoining properties; * The indicative new dwelling on the second lot submitted as part of the application has a garage at the rear of Lot 42 and this structure will impact on the amenity of the property to the rear because Lot 42 is retained and so the ground level is significantly higher than the private open space of the neighbouring property; * The indicative new dwelling is shown as a single level dwelling and it is likely that a new dwelling on the second lot will be a two storey dwelling; * The applicants are developers and have no interest in maintaining the character of Ku-ring-gai. Expert evidence 1. The applicant relied on the expert evidence of Mr Adam Byrnes (planning) and Mr Robert Staas (heritage). The Council relied on the expert evidence of Mr Jonathan Goodwill (planning) and Ms Leona Goldstein (heritage).