Land and Environment Court New South Wales Medium Neutral Citation: Donovan Blanch v Wollongong City Council [2017] NSWLEC 1593 Hearing dates: 10 October 2017 Date of orders: 24 October 2017 Decision date: 24 October 2017 Jurisdiction: Class 1 Before: Bish C Decision: 1. Leave is granted to rely on amended plans provided in Exhibit B. 2. The appeal is upheld by consent. 3. Consent is granted to development application DA-2016/224 for a subdivision of two torrens title lots at Lot 2604, DP 865582, also known as 31 Lamerton Drive, Figtree, and subject to: a) Conditions contained in Annexure A. 4. The exhibits are returned with the exception of Exhibits B and C. Catchwords: DEVELOPMENT APPLICATION: two torrens title lot subdivision – no contentions remaining between parties – consent orders – residents objections remain Legislation Cited: Conveying Act 1919 Environmental Planning and Assessment Act 1979 Wollongong Local Environmental Plan 2009 Cases Cited: Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 Parrott v Kiama [2004] NSWLEC 77 revised – 16/03/2004 Texts Cited: Land and Environment Court Practice Note Class 1 Development Appeals Category: Principal judgment Parties: Mr Donovan Blanch (Applicant) Wollongong City Council (Respondent) Representation: Counsel: Mr A Brickhill, Bradley Allen Love Lawyers (Applicant) Mr J Reilly, Wollongong City Council (Respondent) File Number(s): 2016/385852 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of development application (DA), DA-2016/224 for a subdivision of two torrens title lots at Lot 2604, DP 865582, also known as 31 Lamerton Drive, Figtree (the site). 2. The proposed subdivision was resubmitted for consideration as RD-2016/224/A, under Section 82A of Environmental Planning and Assessment Act 1979 and was subsequently refused. 3. The site has an existing single storey brick dwelling on proposed Lot 1 in the northern section of the site, which fronts Lamerton Drive through an access handle. Proposed Lot 2 is a steeper sloping lot in the southern portion of the site, that will front Kimmins Place. The fall of proposed Lot 2 is 15m to the south. 4. Proposed Lot 2 has been cleared of vegetation, except a strand of tress along the western boundary and the proposed boundary of Lot 1 with Lot 2. Two trees of significance are located on the northern (eastern) boundary of Lot 2, namely trees 13 and 15. 5. The council refused DA-2016/224 on the basis of: 1. inconsistent with the objectives of the minimum subdivision allotment size requirement due to site constraints of steep slope and geotechnical issues, 2. inconsistent with lot width, lot depth and retaining wall objectives potentially resulting in amenity impact from development, specifically causing overshadowing and overlooking to adjoining neighbouring properties, 3. adverse impact on vegetation, namely trees 13 and 15, due to drainage diversion and future dwelling design, 4. traffic safety risk due to waste collection service access, 5. potential impact to neighbouring properties due to stormwater management, sewerage service connection, and relocation of onstreet car parking, and 6. geotechnical constraints that limit future dwelling design and consistency with local character. 1. In summary, the concern of council are that the site, primarly proposed Lot 2, is unsuitable to be developed due to site constraints resulting in potential amenity impacts to neighbouring properties. 2. On 20 June 2017, the applicant submitted to council for review of DA-2016/224, amended plans and additional information. Further to this, a new DA(2017/744) for a dwelling house on proposed Lot 2 was submitted by the applicant to council on 15 June 2017, to address contentions raised above. Details relating to DA-2017/744 are provided in Exhibit C. 3. The effect of the amended plans and additional information including DA-2017/744, is that the council now seeks to enter into consent orders for the proposed subdivision under DA-2016/224 and has no objections to providing consent of DA-2017/744. 4. The draft consent orders for DA-2016/224 were provided to previous objectors on 28 September 2017. 5. The applicant, with leave granted, has provided further information and amended plans in Exhibit B to append to the consent orders, including: 1. Proposed Subdivision Plan, 2017120-PROPD SUBN, dated 6 October 2017, 2. Landscape Plans, being 1809-LD01, 1809-LD02 and 207120 E02, dated 6 October 2017, 3. Drainage Long Section, 2017120 E03, dated 24 August 2017, and 4. Catchment Plan, 2017 E04, dated 24 August 2017. 1. The consent orders for consideration are dated 10 October 2017 in Exhibit 3, which include a condition (46) that requires the applicant to register a restriction on title of Lot 2 for the construction and use of that lot according to the dwelling design, shown in DA-2017/744. 2. The Court heard from residents in neighbouring dwellings, Mr Kulatunga in Kimmins Place, and Mrs Lappin in Lamerton Drive. The concerns of these residents related to: 1. parking realignment and removal of nature strip in Kimmins Place, 2. amenity impacts such as loss of privacy, 3. stormwater runoff management with potential for overflow and child safety risk, 4. removal of trees from Lot 2, and 5. soil destabilisation. 1. In assessing the consent orders provided by the parties, the Court's Practice Note Class 1 Development Appeals (the Practice Note) relevantly provides guidance at paragraph 99: 99. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders, including the proposed conditions of consent; (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard or that, in the circumstances of the case, notification is not necessary. 1. In summary, the Practice Note requires the Court to consider, 1. evidence to show that approval is lawful and appropriate, 2. whether any objection has been properly taken into account, and 3. whether reasonable notice has been given to all persons whom objected to the proposal. 1. In relation to the Practice Note, the applicant has provided an expert report from Mr Arthur Castrissios, of Douglas and Partners on the geotechnical viability of the site. The report finds that it is structurally feasible to construct a two storey dwelling with associated drainage for stormwater runoff and retaining walls to prevent soil/slope destabilisation. 2. Ms Nicole Ashton, a planning expert from Council provided advice on the proposed dwelling submitted under DA-2017/744, and finds that it addresses the site limitations and would satisfy the development controls of the Wollongong Development Control Plan 2009 (WDCP 2009). This was confirmed by the applicant's town planning expert, Ms Elaine Treglown. 3. Ms Ashton observed that the 'proposed dwelling under DA-2017/744 has demonstrated that a suitable design is available to the site whereby overlooking and overshadowing impacts both from and to the proposed lots are minimised'. She goes on to explain that: amenity and privacy impacts have been addressed through east facing living areas and terrace; the proposed dwelling is consistent with existing and future character of the area; the driveway is of acceptable width to minimise loss of onstreet parking; and waste collection can be undertaken from the nearby unrestricted road reserve. 4. With regards to the proposed subdivision, she considers that the applicant has demonstrated that development on proposed Lot 2 would have no adverse amenity impact, and that trees 13 and 15 will be retained with the proposed dwelling and stormwater drainage design. 5. Ms Treglown agreed that potential amenity and privacy impacts have been addressed through DA-2017/744, and that any new dwelling on Lot 2 will have a setback of 6 m at the front and 8 m at the rear, with landscaping along the boundary to provide screening. 6. Non-compliance of the proposed retaining walls, according to the WDCP 2009 under section 4.17.3 requires 600 mm height with 900 mm setback, has been addressed by the retaining walls being geotechnically designed, limited to 1 m in height, and setback 3 m and 6 m in the front and rear of the site, respectively. Council have raised no objection with the height or location of the proposed retaining walls, and have addressed the issue of proper construction of the retaining walls in conditions 2 and 10 of the consent orders. 7. Ms Treglown adds that the geotechnical stability of the site will be maintained with a two storey dwelling constructed of lightweight material, retaining walls constructed with associated drainage, and ensuring slabs and footings are constructed according to Class P (for hillside lot) of Australian Standards , AS 2870-2011. 8. She considers that the issue of traffic safety and parking has been addressed in DA-2017/744 with a double garage and an onsite turning area to ensure forward motion. 9. With the benefit of the site view, an understanding of the plans and DA-2017/744, I concur with the conclusions of the town planning/geotechnical experts, and having read and heard the residents objections and geotechnical report, I concur that the proposed subdivision under DA-2016/224 is acceptable in the circumstances of this case. I am satisfied that the proposed subdivision can be developed according to the design provided in DA-2017/744, which would ameliorate adverse impacts, as raised by the objectors and satsifies the development controls of the WDCP 2009. 10. On this basis, I am satisfied that the requirement in the Practice Note that sufficient evidence has been provided to show that the approval is "lawful and appropriate." 11. In addressing the appropriateness of assessing and consenting to a subdivision relying on a specified dwelling design, I refer to Parrott v Kiama [2004] NSWLEC 77 revised – 16/03/2004. Senior Commissioner Roseth explains the planning principle whereby 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'. Further to this, Senior Commisioner Roseth considers 'The design of the future house (at least the outline design) is not a matter that is appropriately left till later'. 12. Consistent with the planning principle described above and pursuant to Section 88B(2)(c1) of the Conveyancing Act 1919, I concur with condition 46 of the consent order to require a restriction on use over proposed Lot 2 and that any furture development on proposed Lot 2 must be constructed according to development consent DA-2017/744. 13. I agree with conditions 3, 20 and 21 in the consent order that retain and protect significant vegetation, namely trees 13 and 15. 14. With regards to the requirements to address objector concerns in the Practice Note, and further to the expert evidence provided above, Mr Larkins, the applicant's expert in stormwater engineering, confirmed that the proposed stormwater design and management was appropriate for the site to control flows up to a 1 in 100 year event without causing undue impact to neighbours from overtopping. He also indicated that the proposed stormwater design would not result in soil/slope destabilisation or have a child safety risk. He considered that the stormwater management system designed across the northern boundary of Lot 2 will only be required to handle minor flows and the rock drain along the western boundary will not over fill to cause turbulent flow. The majority of overland flow will continue to be directed, as currently occurs, through the neighbouring property to the east of the site. 15. I am satisfied that the conditions in the consent order that relates to geotechnical and stormwater issues are sufficient to address the concerns raised by objectors regarding stormwater overflow, child safety and soil stabilisation. 16. I am also satisfied that the amended plans and consent order conditions address the issue of site constraints to allow the construction of a dwelling that will limit adverse geotechnical or amenity impacts to neighbouring properties. 17. Of the other matters raised by residents: potential construction damage to adjoining properties due to vibration, I find that this has only been partially addressed in the consent orders by condition 16, that requires a dilapidation survey of adjoining structures addressed in the consent orders. The potential impact from vibration has been considered in the geotechnical report and should be addressed in the consent order. Therefore, I amend condition 2 in the consent order as follows: Condition 2 2.6 Where the use of rock hammers is required, a maximum peak particle velocity at foundation level of nearby structures of 8 mm/s is required. 1. On the issue of unlawful tree clearing on the site prior to the appeal of DA-2016/224 and as raised by the objectors, I find it is not relevant to the matters before the Court for consideration. I am guided in my decision by the findings in Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 of Preston CJ, where he states: [35. Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the furture owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely to in the future to act or carry out any approved use unlawfully. 1. In terms of the WLEP 2009, there are no further matters required to be considered to comply with cl 2.3(2), cl 2.6, cl 4.1, cl 4.3, cl 5.9, cl 7.1 or cl 7.6 that would warrant the refusal of the application. 2. On this basis, I am satisfied that the requirement in the Practice Note to 'demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account' has been addressed. 3. As shown in Exhibits 1 and 7, I find that the requirements of the Practice Note have been met, whereby the objectors have been provided with sufficient, reasonable notice and opportunity to provide a response to the proposed subdivision. 4. Overall, the additional reports and information provided, (Exhibits A to C) have provided sufficient information, together with the advice of the experts, to conclude that there is no reason why the consent orders should not be granted. 5. Consequently, the orders of the Court by consent are: 1. Leave is granted to rely on amended plans provided in Exhibit B. 2. The appeal is upheld by consent. 3. Consent is granted to development application number DA-2016/224 for a subdivision of two torrens title lots at Lot 2604, DP 865582, also known as 31 Lamerton Drive, Figtree and subject to: 1. Conditions contained in Annexure A. 1. The exhibits are returned with the exception of Exhibits B and C. ______________ S Bish Commissioner of the Court Annexure A (213 KB, pdf) Amendments 27 October 2017 - Clerical error - Representation (cover sheet) amended. 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: 27 October 2017