Land and Environment Court New South Wales Medium Neutral Citation: Agostino v Blacktown City Council [2017] NSWLEC 1504 Hearing dates: 17 August 2017 Date of orders: 13 September 2017 Decision date: 13 September 2017 Jurisdiction: Class 1 Before: Bish C Decision: 1. The appeal is dismissed. 2. Development Application No. 16/05340 for subdivision of an existing lot (Lot 82) into two lots (Lots 1 and 2) at 8 Plumpton Road, Plumpton, is refused. 3. The exhibits, except Exhibit 1, are returned Catchwords: DEVELOPMENT APPLICATION: lot subdivisions - minimum subdivision lot size requirement - clause 4.6 variation – character - precedence. Legislation Cited: Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979, s79C Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Texts Cited: Nil Category: Principal judgment Parties: Sam and Rita Agostino (Applicant) Blacktown City Council (Respondent) Representation: Counsel: Mr P Rigg, Solicitor (Applicant) Mr D Loether, Solicitor (Respondent) Solicitors: Peter R Rigg (Applicant) Blacktown City Council (Respondent) File Number(s): 2017/135537 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) No. 16/05340 for the subdivision of an existing lot (Lot 82) into two lots (Lots 1 and 2) at 8 Plumpton Road, Plumpton (the site). 2. The subdivision provides for two (2) Torrens title lots of 420 and 450 m2, being Lots 1 and 2, respectively. 3. In hearing this matter, no site visit was undertaken by agreement. 4. The Council states that the application should be refused as the proposed subdivision creates one lot that is of insufficient size to meet the minimum subdivision lot size requirement, pursuant to Clause 4.1, Blacktown Local Environmental Plan 2015; and that the written request, pursuant to cl 4.6, does not support the variation of this requirement. The Council also states that the variation to the minimum lot size requirement is not in the public interest and will establish precedence. 5. The site 6. The site is generally rectangular in shape with a 25.15 m street frontage of Plumpton Road, forming the northern boundary, a rear southern boundary of 25.15 m, a western boundary of 34.6 m, an eastern boundary of 34.6 m, and a total site area of 870 m2. The site is orientated on a north to south axis, and the land has a fall toward the west of approximately 0.5 m across the property. Numerous exotic and native trees and shrubs are located on the site, as well as a grassed area. 7. The site is currently occupied by a single storey detached dwelling along the western boundary, with a garage located to the rear of the property along the southern boundary. Based on the evidence provided to the Court, including aerial photographs, the residential area is a mix of single dwelling houses and dual occupancies. Relevant planning controls 1. The site is zoned R2 Low Density Residential, under Blacktown Local Environmental Plan 2015 (LEP 2015). The proposed subdivision is permissible in the zone with consent. Cl 2.3(2) provides that the Consent Authority must have regard to the zone objectives, when considering a development application. The zone objectives 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 enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood. 1. The zone objectives, particularly with regards to '…within a low density residential environment' and 'not adversely affect the amenity of the neighbourhood', require consideration of the potential impacts of any future development on the proposed subdivision, as contentions raised by the Council. 2. A key requirement of the LEP 2015 is the satisfaction of cl 4.1, which establishes the objectives and numeric for a minimum subdivision lot size, specifically 'compatibility with the existing character'. In response, the applicant has submitted a request to vary the minimum subdivision lot size, pursuant to cl 4.6, citing that to adhere to cl 4.1 would be unreasonable and unnecessary. 3. The Blacktown Development Control Plan 2016 (DCP 2016) provides for development controls in the zone. The DCP 2015 provides objectives and relevant controls for neighbourhood and subdivision design relevant to this subdivision proposal and any future development. Can the variation of minimum subdivision lot size be supported? 1. The Court heard on this issue from town planning experts, being: Mr Brewer (for the applicant); and Ms Bonomo (for the respondent). 2. The standard and objectives 3. Clause 4.1 LEP establishes the objectives and numeric requirement for a minimum subdivision lot size. The Lot Size Map (LSZ_008) provides for a minimum of lot size of 450 m2 to be applied on the site. 4.1 Minimum subdivision lot size (1) The objectives of this clause are as follows: (a) to establish minimum lot sizes for residential development, (b) to ensure that new residential development is compatible with the existing character of the surrounding residential area. (2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan. (3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land. 1. The extent of the breach of minimum subdivision lot size 2. The proposed total area for Lot 1 is 420.02 m2 and for Lot 2, total area is 450 m2. The proposed subdivision is shown diagrammatically in Exhibit B. Both parties agree that the proposed size of Lot 1 does not comply with cl 4.1, LEP 2015, which has a deficiency of 29.98 m2, equivalent to 6.7% for the minimum lot size requirement. 3. The variation of standards requirements 4. Clause 4.6 LEP provides an opportunity to vary the LEP 2015 standards, by meeting the objectives and requirements for an exception to development standards, including minimum subdivision lot size. 4.6 Exceptions to development standards (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, 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 development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. 1. Written request 2. The written request for variation of cl 4.1 was prepared by Mr Brewer, of Willana Associates, pursuant to cl 4.6(3) LEP 2015, and concludes that a variation to the minimum lot size requirement should be supported, as strict compliance to the standard is both unnecessary and unreasonable, on the following basis: 1. Site would be underdeveloped, with associated tangible visual or amenity disbenefits. 2. The difference in numerical compliance is negligible, and would not alter local amenity or environmental impact, and is compatible with the character of surrounding residential area. 3. The proposed lots are of similar size and dimension to other subdivisions in the visual catchment. The proposed subdivision is not incompatible with 'desired future character of the locality' and provides a better planning outcome through addressing site constraints and opportunities with high level of amenity, consistent with provisions of 'orderly and economic development'. 4. The proposed lots can be developed in a fashion compliant with relevant DCP 2015 controls, as both satisfy the DCP 2015 minimum width (12 m) and depth (20 m) requirements. There are sufficient environmental planning grounds to satisfy zone objectives, whereby development can be undertaken that does not contribute adversely with regards to overshadowing, visual or acoustic impact, and can allow for compliant building form and scale. 1. To support assessment of the zone character, Mr Brewer referred to the smaller lot size developments found at 349 Rooty Hill Road, 1-12 Ferrugia Place and 21 Plumpton Road, with their location relative to the site shown in Exhibit 7. He did however acknowledge that the smaller subdivision for townhouses in the surrounding area was approved under a previous LEP 2015, as shown in Exhibit 2. 2. Mr Brewer agreed that any dwelling on the proposed Lot 1 could potentially have a correspondingly reduced size to accommodate the DCP 2015 controls, and that any future development on the lot/s would be subject to a DA, with consent. He agreed that some amenity impacts may occur due to development on a smaller lot size, however contended that future development must be consistent with 79C, Environmental Protection and Assessment Act 1979 (EP&A Act) and to consider future use. 3. To satisfy LEP 2015 objectives 4. Ms Bonomo considers that: 1. The request for variation of the minimum lot size requirement should not be supported as the proposed subdivision does not satisfy the zone objectives. The minimum subdivision lot size requirement establishes a basis from which the zone objectives can be achieved. 2. A smaller lot size would establish a precedence for others to develop sites with smaller size lots that would result in a higher density in the zone, and which contradicts the intent of the LEP 2015 to 'down zone' and to provide certainty to the community. 3. the DCP 2015 has no Floor Space Ratio (FSR) requirement, and that the minimum subdivision lot size requirement (in the LEP 2015) is the key numerical tool to manage the size of a development to ensure physical impact to other properties, such as overshadowing and noise, are minimised. 1. I note that there are no community objections to the proposed subdivision. 2. The parties agreed that the proposed lots meet the DCP 2015 requirements for depth and width, and that any future development on the proposed lot/s would be subject to a DA. They did not agree as to whether any future development on a smaller lot size would potentially impact on neighbouring properties amenity and the character of the zone. 3. Changes to the minimum lot size requirement within the zone would result in changes to the character of the zone. 4. The understanding of cl 4.1 objective, 'new residential development is compatible with the existing character of the surrounding residential area' was explored. According to Ms Bonomo, this would require development on large lots, to support low density, quiet streets and large backyards; and according to Mr Brewer, allows for variable allotment pattern, maximise building envelope and detached dwellings with some attached dual occupancies. Ms Bonono refers to the character test being applied to the local street area that is 'visual' from the site, whereas Mr Brewer refers to the character test being applied across the entire zone. 5. Ms Bonomo contended that with a smaller lot size, a correspondingly smaller development is likely required, which although may meet the DCP 2015 development controls for width and depth, would override the intent of the LEP 2015 to 'down zone' development in the zone. 6. Both parties agreed that cl 4.1B, LEP 2015, provides opportunity for dual occupancy (detached dwelling) that requires a minimum lot size of 600 m2, and which the site is currently able to satisfy. 7. Findings 8. For the determination of this matter, I have considered the evidence and expert submissions. It is apparent that the threshold issue concerns the implications of the proposed lot subdivision on achieving compatibility with the character of the area, neighbourhood amenity and in the public interest. 9. The issue for consideration arise due to the different interpretations of existing character in the zone and the intent of the LEP 2015 to achieve zone objectives. The submission by Council is that the character of the zone should be given significant weight by applying the numeric standards of cl 4.1 LEP 2015, setting a 450 m2 for minimum subdivision lot size. Accordingly, a lot subdivision of 420 m2 would be inappropriate. Compliance with this standard then establishes the likely future character of the area. 10. The existing pattern of residential lots in close proximity to the site, is shown in the zoning and Lot Size maps (Exhibit 2), Councils location plan (Exhibit 5) and experts location maps (Exhibit 7). The properties along Plumpton Road, which could be regarded as being in the 'immediate visual catchment of the site' are designated between 571.5 to 942.2 m2, and are typically of regular rectangular shape. 11. In considering the question of consistency with zone and development standard objectives, I have considered the approach of the former Chief Judge, Pearlman J in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, her Honour expresses the following opinion [at 27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. 1. The parties agree that the proposed subdivision, objective in cl 4.1(1)(a), LEP 2015 has not been met. With regards to cl 4.1, objective (1)(b), specifically that 'new residential development is compatible with the existing character of the surrounding residential area', the parties are not able to agree. 2. Project Venture Developments v Pittwater Council [2005] NSWLEC 191 [22], considered the word 'compatible' and found to have the meaning of being 'capable of existing together in harmony'. 3. The proposed subdivision represents a development with a lot size and potential dwelling size smaller than the majority of neighbouring lots within the visual catchment of Plumpton Road (typically between 571.5 to 942.2 m2). The Court notes that the character test in cl 4.1, objective (1)(b) refers specifically to 'existing' character. I find that the existing character of the 'surrounding residential area' is consistent with the Councils understanding, which is based on large lot sizes supporting low density development, and that the intention of the LEP 2015 was to protect the existing character of the area through the minimum lot size requirement in cl 4.1. Therefore, the proposal with a lot size and (potentially) dwelling size smaller than the overwhelming number of neighbouring properties in Plumpton Road and the zone, is incompatible with the existing character of the surrounding residential area, and does not meet the objective of cl 4.1(1)(b). 4. Cl 4.6, LEP 2015 imposes four preconditions, provided below, on the Court in exercising the power to grant consent to the proposed subdivision to vary the minimum subdivision lot size requirement, which are addressed in an order to provide consistency: 1. Cl 4.6(1) - objectives to achieve flexibility, 2. Cl 4.6(3) – written request, specifying: 1. compliance is unreasonable and unnecessary, and 2. sufficient environmental planning controls. 1. Cl 4.6 (4)(a)(ii) – in public interest and consistent with zone objectives. 2. Cl 4.6 (5)(b) – there is public benefit to maintaining development standard. 1. With regards to cl 4.6(3)(i), compliance with the minimum subdivision lot size requirement being unreasonable or unnecessary, I consider that the written request did not adequately explore any extenuating circumstances to support the need for a smaller lot size to satisfy zone objectives, specifically 'To provide for the housing needs of the community within a low density residential environment'. The written request did not demonstrate that there are no other opportunities to satisfy the zone objectives, particularly utilisation of other development controls to meet the need for housing, such as through dual occupancy (detached dwelling). The written request has not provided evidence that the site has any natural features such as topography or access limitations that would require a smaller lot size or would impede other forms of development that would be consistent with the objective in cl 4.1(1)(b). 2. Further to this, pursuant to cl 4.6(3)(ii), I find that the applicant in the written request and in evidence, has not sufficiently demonstrated that the environmental planning controls implemented through the DCP 2015, can be applied in any future development of the smaller subdivided lot without potential impact to either the area character or public amenity, particularly within the neighbourhood. 3. I find there is sufficient uncertainty as to how a development on a smaller lot size would meet DCP 2015 development controls and not compromise neighbourhood amenity. The potential for amenity impact to neighbouring properties, from overshadowing and impeded privacy, as a result of a dwelling on a smaller lot size cannot be dismissed. 4. I find that cl 4.1 of the LEP 2015 is intended to inform future development size and zone character, and therefore not adhering to this standard could impact adversely on the existing character of the neighbourhood. The Court does not agree with the applicant's contention that cl 4.1 does not provide 'any discernible benefits to the amenity of adjoin sites or public'. 5. The LEP 2015 (2015) is a relatively new planning tool that has been developed in the Council's own words to 'down zone' development in the zone. The Council acknowledges that previous planning tools allowed for smaller lot sizes in the zone. The Court agrees that the intent of the current LEP 2015 is to protect the 'existing character of the residential area' with larger lot sizes, as observed in Plumpton Road. 6. I find, pursuant to cl 4.6 (4)(a)(ii), that a variation of the minimum subdivision lot size would therefore contravene the intent of the LEP 2015 to ensure development is of a size 'characteristic' to the area. 7. For the reasons provided above, namely protecting the existing character of the residential area, and applying significance to the standards of the LEP 2015 to protect public interest, I find that there is public benefit, pursuant to cl 4.6 (5)(b) to maintaining the development standards for minimum subdivision lot size requirement at this site. 8. With regards to consistency with cl 4.6(1), to provide flexibility in development standards, I find that the proposed subdivision with one undersized lot, does not achieve better outcomes for development in the zone, considering the potential impacts to public amenity and zone character. 9. I do not accept that the applicant has established that compliance with the minimum subdivision lot size requirement, pursuant to cl 4.1, LEP 2015 would be unreasonable or unnecessary. I find that a variation of this standard pursuant to cl 4.6 has not been satisfied and would not meet the zone objectives. 10. It therefore follows from what I have set out above, that the proposed development application should be rejected. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 16/05340 for subdivision from one lot (Lot 82) into two lots (Lots 1 and 2) at 8 Plumpton Road, Plumpton, is refused. 3. The exhibits, except Exhibit 1, are returned. ____________ S Bish 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: 03 May 2018