Land and Environment Court New South Wales Medium Neutral Citation: Longhurst v Randwick City Council [2019] NSWLEC 1011 Hearing dates: 21 November 2018 Date of orders: 18 January 2019 Decision date: 18 January 2019 Jurisdiction: Class 1 Before: Bish C Decision: (1) The appeal is upheld. (2) Development Application (DA) 410/2017 to subdivide Lot 22 DP 286017, also known as 4 Meyler Close, Little Bay into two (2) lots is approved subject to conditions of consent in Annexure A, and the Plan of Management in Annexure B. (3) The exhibits, except Exhibits 2, B and G are returned. Catchwords: DEVELOPMENT APPLICATION - strata subdivision - dual occupancy - existing dwellings - consistency with Masterplan - character - precedence Legislation Cited: Community Land Development Act 1989 Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Heritage Act 1977 Land and Environment Court Act 1979 Real Property Act 1900 Randwick Local Environment Plan 2012 Strata Schemes (Freehold Development) Act 1973 Strata Schemes (Leasehold Development) Act 1986 Strata Schemes Development Act 2015 Strata Schemes Management Regulation 2016 Texts Cited: Amended Prince Henry Site Masterplan 2005 Randwick Development Control Plan 2013 Category: Principal judgment Parties: Steve Longhurst (Applicant) Randwick City Council (Respondent) Representation: Solicitors: S Kondilios, Hall and Willcox (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2018/59384 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 appeal, made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against a deemed refusal by Randwick City Council (hereafter the Council) of Development Application (DA) 410/2017 seeking to subdivide Lot 22 DP 286017, also known as 4 Meyler Close, Little Bay (the site) into two lots. Background 1. The site is located within the Prince Henry Hospital Conservation Area (the conservation area), which is listed on the New South Wales State Heritage Register, pursuant to the Heritage Act 1977. 2. The site is located within Lot 75, identified in the amended Prince Henry Site Masterplan (the Masterplan), which was adopted in 2003 and amended in 2005. Development Application 771/2005, which relates to the Masterplan, approved the subdivision of Lot 75 into 23 single-dwelling lots on 15 March 2006 (of which the site was defined as Lot 22). This subdivision now forms part of Neighbourhood Association DP 286017. 3. On 9 January 2017, the site was approved for construction under DA 552/2016, as a part two, part three-storey attached dual occupancy, which included rear-lane access off Meyler Close for a basement garage for both dwellings. Prior to this, the site was left vacant. 4. The DA (410/2017) under appeal, which relates to subdivision with existing dwellings into two strata lots, was lodged with the Council on 12 July 2017 and following notification, six submissions in objection were received. The issues related to traffic access, as well as consistency with the Masterplan concept and character of the conservation area. 5. Following a s 34 conciliation conference between the parties, arranged under s 34(1) of the Land and Environment Court Act 1979 (the Court Act), the DA application, with associated plans, was amended by Court granted leave on 10 July 2018 for the proposed subdivision to be under Strata Title (rather than initially proposed Torrens Title). 6. In response to the amended DA application, Council filed, with leave granted by the Court, an Amended Statement of Facts and Contentions (ASoFC), dated 5 September 2018. 7. The hearing commenced on site, with an inspection of the existing dwellings on the site and the surrounding area, and also heard submissions from four objectors representing neighbouring dwellings and the Prince Henry Community Association. The issues raised included: consistency with the Masterplan; process of the DA submission; precedence; traffic impacts (to rear laneway access); and on-street parking. 8. The Council's contentions that remain under appeal relate to: * incompatibility with desired future and existing character under the amended Masterplan (2005) and relevant development control plan; * adverse precedence; and * not in the public interest. 1. The Court granted leave to rely on amended conditions of consent (amended Exhibit 3) and the Plan of Management (amended Exhibit D), which were filed online with the Court on 29 November 2018, following the hearing. The site 1. The site has a 20 m "dominant" street frontage to Ewing Avenue (forming the western boundary) and rear access (via an easement) from Meyler Close, which forms the eastern boundary. The site's 31 m southern boundary adjoins 'Bob-A-Day' park. 2. Three other dwellings share access to the rear (laneway) easement from Meyler Close. The site relies on the rear laneway as driveway (vehicular) access for both proposed lots and also pedestrian access for proposed Lot 2. Pedestrian access to proposed Lot 1 is via Ewing Avenue. 3. The site has a total area of 615 square metres, with the proposed subdivision resulting in an area for Lot 1 of 387 square metres and Lot 2 of 228 square metres. 4. The dwelling on proposed Lot 1, which fronts to Ewing Avenue, is known as 4A Meyler Close, and the dwelling on proposed Lot 2, which fronts to (the lane off) Meyler Close, is known as 4B Meyler Close. 5. The conservation area is a mixture of low and medium residential uses, with retained heritage items such as the former Flowers Ward, which has been converted to residential apartments. Relevant Planning Controls 1. Section 4.15(3A) of the EP&A Act relevantly provides for the relevance of development control plans, such that: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. … 1. The proposed strata subdivision into two lots over Lot 22 DP 286017 (the site) is identified as the 'current lot', pursuant to s 7 of the Strata Schemes (Freehold Development) Act 1973 (the Strata Schemes Act), which states: 7 Subdivision (1) In this section: "current plan lot" means an existing lot within the meaning of the Conveyancing Act 1919 (not being a lot as defined in section 5(1) of this Act or section 4(1) of the Strata Schemes (Leasehold Development) Act 1986). "land" means land under the Real Property Act 1900 held in fee simple (other than land comprised in a qualified or limited folio of the Register) being, except as provided by subsection (2A): (a) land consisting of one current plan lot or of two or more contiguous current plan lots, (b) land the subject of a transaction referred to in section 23G of the Conveyancing Act 1919, being land of which every part is contiguous with another part, or (c) land part of which comprises land, as defined in paragraph (a), and the remainder of which comprises land, as defined in paragraph (b), contiguous to that firstmentioned part. (1A) (Repealed) (2) Land including the whole of a building may be subdivided into lots, or into lots and common property, by the registration of a plan as a strata plan. (2A) Land including part only of a building, being: (a) land consisting of one current plan lot or of two or more current plan lots, whether contiguous or not, or (b) land the subject of a transaction referred to in section 23G of the Conveyancing Act 1919, or (c) land part of which comprises land, as defined in paragraph (a), and the remainder of which comprises land, as defined in paragraph (b), may be subdivided into lots, or into lots and common property, by the registration of a plan as a strata plan, but only if the building is erected on a site of land held in fee simple. (2B) Land that is a development lot under this Act cannot be subdivided under this section. Note. See section 8A for subdivision of land that is a development lot. (2C) Land that is a development lot under the Community Land Development Act 1989 can be subdivided under this section. (3) The provisions of section 88B of the Conveyancing Act 1919 apply to a strata plan and a strata plan of subdivision in the same way as they apply to a plan referred to in that section relating to land under the provisions of the Real Property Act 1900, except in so far as that section authorises the creation or release of easements, or the creation of restrictions on the use of land or positive covenants burdening or benefiting land not under those provisions. 1. The requirement to define boundaries and designate entitlements to each of the proposed lots under strata subdivision is made pursuant to s 10 of the Strata Schemes Act as follows: 10 Unit entitlement of lots created by subdivision of lots (1) A plan illustrating a proposed subdivision altering the boundaries of one or more lots so as to create only two or more different lots, other than a plan referred to in section 8A(1), shall not be registered as a strata plan of subdivision unless it is accompanied by a schedule showing as a whole number, in respect of: (a) each lot comprised in the parcel other than the lot or lots the subject of the proposed subdivision, and (b) each proposed lot, the proposed unit entitlement of that lot or proposed lot, and showing the proposed aggregate unit entitlement. (2) A number shown as referred to in subsection (1) in respect of a lot other than a proposed lot shall bear to the proposed aggregate unit entitlement so shown the same proportion as the unit entitlement of that lot bore, immediately before the plan was registered, to the aggregate unit entitlement. (3) The sum of the numbers shown as referred to in subsection (1) in respect of the proposed lots shall bear to the proposed aggregate unit entitlement so shown the same proportion as the unit entitlement or the sum of the unit entitlements of the lot or lots the subject of the proposed subdivision bore, immediately before the plan was registered, to the aggregate unit entitlement. 1. The function of the proposed lots that are created under Strata Title subdivision, are subject to Schedule 3 of the Strata Schemes Management Regulation 2016 (the Strata Schemes Regulation). 2. The site is zoned R1 General Residential, pursuant to the Randwick Local Environmental Plan 2012 (RLEP 2012). The proposed dual occupancy dwellings are permissible with consent in this zone. The objectives of the zone relevantly state the following: Objectives of zone • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To allow the comprehensive redevelopment of land for primarily residential and open space purposes. • To protect the amenity of residents. • To encourage housing affordability. • To enable small-scale business uses in existing commercial buildings. 1. Pursuant to cl 4.1(4)(a) of the RLEP 2012, the minimum lot size requirement for the proposed strata subdivision is not relevant, as follows: 4.1 Minimum subdivision lot size (1) The objectives of this clause are as follows: (a) to minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties, (b) to ensure that lot sizes allow development to be sited to protect natural or cultural features, including heritage items, and to retain special features such as trees and views, (c) to ensure that lot sizes are able to accommodate development that is suitable for its purpose. (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. (4) This clause does not apply in relation to the subdivision of any land: (a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or (b) by any kind of subdivision under the Community Land Development Act 1989. 1. Pursuant to the Randwick Development Control Plan 2013 (RDCP 2013), the site is located within "Section E4 Prince Henry Site, Little Bay". The objectives of the E4 Prince Henry Site are: "• To create a sustainable neighbourhood that integrates new and existing development. • To ensure design reflects the site's unique location and characteristics. • To conserve the heritage significance of the Prince Henry site and the natural and cultural elements that contribute to the significance of the site and its setting. • To protect the visual amenity and scenic value of the coastline. • To ensure development reflects the principles of the adopted master plan for the site. • To ensure development demonstrates architectural merit and incorporates high quality materials and finishes. • To ensure development promotes and incorporates the principles of ecologically sustainable development (ESD). • To provide for a mix of land uses and dwelling types. • To provide for housing choice to accommodate the needs of current and future households and affordability. • To protect and enhance remnant native vegetation, habitat corridors, riparian buffers and wetland area." 1. The 'E4 Prince Henry Site' is divided into six precincts, which define the cultural landscape, heritage significance and residential densities. The site, identified as "d66" in the RDCP 2013, is located within Precinct 4 (P4) which seeks to "provide for a mix of residential densities". 2. With regards to the proposed (strata) subdivision, s 3 of the RDCP 2013 establishes the subdivision objectives in P4 of the E4 Prince Henry Site as: "• To provide a range and mix of lot sizes with areas and dimensions suitable for the permitted land uses and a variety of building types. • To enable lot sizes that facilitate housing diversity and choice. • To promote and facilitate ecologically sustainable development and micro climate management by providing lots that are appropriately oriented. • To ensure that all lots have a primary street frontage. • To arrange lots in a manner that facilitates personal and property safety and security. • To ensure lots have total areas and dimensions that allow dwellings, ancillary buildings, private outdoor open space, landscaped areas, and vehicle access and parking to be located and constructed appropriately, and significant built and landscape elements to be retained within an appropriate setting." 1. The desired character for P4, as established in the RDCP 2013, is "characterised by residential uses in the form of dwelling houses which will be accessed from Ewing Avenue and a new loop road that has been aligned to protect the view corridors from Flowers Wards 5 and 6". The "new loop road" refers to Meyler Close. Further to this, lots that front to Ewing Avenue are characterised by "dwellings which line Ewing Avenue will form a group of buildings of height and scale consistent with the former Flowers Wards buildings. The dwellings will be set behind a wall on the Ewing Avenue frontage that will be designed as a single entity. The wall will present as a consistent element to establish a uniform appearance opposite the Flowers Wards". 2. As set out in Section 1 of the RDCP 2013, it precedes, has relevance to, and prevails over the Masterplan and its amendments. Evidence 1. The Applicant has relied on Mr Garry Chapman for expert evidence in planning. 2. The Respondent has relied on Mr Steven Layman for expert evidence in planning. Is the creation of two Strata Title lots inconsistent with the desired character of Precinct 4 (P4)? 1. The planning experts agree that the design of the existing (two) dual occupancy dwellings on the site as they present as a single dwelling by virtue of only one dwelling (4A Meyler Close) having "dominant" frontage to Ewing Street, and both dwellings being of consistent colour scheme/material finishes in the streetscape. 2. Mr Chapman explained that the proposed strata subdivision will have no visible change to the functioning of the site, or perception of the built form, from what has already been approved. Further to this, he states that the creation of the strata title lots will not result in any adverse changes to the site that would be inconsistent with the planning provisions as set out for the conservation area, as expressed in the RDCP 2013. 3. He states that there is no physical change to the approved structures or change to the cadastral pattern. 4. Mr Layman agrees that the external presentation and built form of the existing dwellings will not immediately change as a result of the proposed strata subdivision; however, he considers that the result of two independently owned dwellings will, in the future, change the character of the dwellings to the effect of being more consistent with semi-detached townhouses rather than a single dwelling. He justifies this concern with an assessment that independently owned buildings have the potential for variances in colour schemes, landscaping and external works. 5. He considers the objective for a mix of residential types with associated costs is already achieved through the implementation of the Masterplan for Precinct 4 and therefore, the proposed subdivision is not necessary to achieve this desired function of the site as expressed by the Applicant. 6. Mr Layman agrees that the proposed strata subdivision will not change the cadastral pattern; however, he suggests that there is potential for other lots in P4 to undertake a similar development with strata subdivision which will undermine the "low scale built environment", which forms the character of the area. The consequence of other lots seeking to subdivide could result in potential impacts to parking and a bulkier streetscape. Findings 1. Pursuant to s 7 of the Strata Schemes Act and cl 4.1A of the RLEP 2012, strata subdivision into two lots on the site is permissible within the R1 Zone and is provided for in the RDCP 2013, including P4 of the conservation area. 2. It is accepted by the experts, and I agree that the existing dwellings on the site are currently constructed as "dual occupancies (attached)", as defined by the RLEP 2012 below: dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling. 1. It is also accepted that the proposed strata subdivision into two lots on the site will not result in a change of dwelling type, pursuant to s 7 of the Strata Schemes Act, whereby the creation of two Strata Title lots is made without change to the "current plan lot" (Lot 22 DP 286017) as defined under the s 7A of the Conveyancing Act 1919, provided below. Therefore, the cadastral pattern will not change as a result of the proposed strata subdivision. 7A Current plan (1) In this Act, current plan means a Crown plan or a registered plan, but does not include so much of a Crown plan or registered plan as is taken not to form part of a current plan because of subsection (2), (3) or (4). 1. It is agreed by the experts and I accept that the existing dwellings have been constructed in accordance with the approved DA, which complies with the relevant standards and controls for this type of dwelling, as established in the RLEP 2012 and RDCP 2013. 2. Further to this, it is agreed that in the proposed strata subdivision on this site is not subject to minimum lot size requirements within the R1 zone, pursuant to cl 4.1(4)(a) of the RLEP 2012. Lot 22 DP 286017 (the site) will remain under Community Title with its respective management requirements, and the two proposed Strata Title lots will be managed pursuant to the registered strata plan (Exhibit B) and according to the amended (lot) Management Plan (Exhibit D). The effect of this I find, is that the site can function consistent with the controls of the RDCP 2013. 3. Therefore, the key issue to be resolved is whether the creation of a two lot strata subdivision on a site within P4 is consistent with the character as established in the RDCP 2013. 4. I agree with Mr Chapman that the existing dwellings currently, and will continue to, present to the "dominant" street frontage, being Ewing Avenue, as a single dwelling, by virtue of implementation of the Management Plan. I am satisfied that the Management Plan complies (by reference) with the requirements established in Sch 3 of the Strata Schemes Regulation 2016. I agree that the Management Plan will provide the necessary guidance to future owners of the (two) strata lots, particularly to ensure consistency with the RDCP 2013 requirements that relate to (single) presentation of the dwellings to the streetscape, including colour, materials and landscape. I acknowledge that access (to the dwellings) from Ewing Avenue cannot be changed without a development application. 5. I am therefore satisfied that the proposed strata subdivision into two lots meets the objectives for Precinct 4m as provided in the RDCP 2013 and, in particular, "To ensure that all lots have a primary street frontage". 6. The existing dwellings currently satisfy the requirements of both the RLEP 2012 and RDCP 2013, and I find that this will not be diminished by the proposed strata subdivision. 7. I therefore find that the proposed subdivision of the site with existing dwellings into two strata lots is not inconsistent with the desired character of P4 in the E4 Prince Henry site. 8. I am satisfied that the requirements of s 4.15(3A) of the EP&A Act are achieved. The proposed subdivision is consistent with the objectives of the R1 Zone as set out in the RLEP 2012, and as expressed in "Section E4 Prince Henry Site, Little Bay" of the RDCP 2013. The proposed subdivision is not inconsistent with the provisions of the RLEP 2012 or any controls of the RDCP 2013. Does the creation of two strata lots create adverse precedence in Precinct 4? 1. Further to the comments made in answer to the previous question, the experts raise a separate additional response as relevant to the issue of precedence. 2. The planning experts agree that the subdivision that created the site (Lot 22 DP 286017) was made consistent with the amended Masterplan (2005), and has been implemented by the RDCP 2013 to achieve the objectives of P4, specifically with regards to housing diversity. The experts also agree that the existing approved development on the site for "dual occupancy (attached)" is consistent with the objectives of P4 and satisfies a diversity of dwellings types. 3. Mr Chapman considers that the majority of the remaining lots in P4 are already developed as single dwelling houses, with the exception of 6 and 8 McMaster Place, which are already approved for single dwellings. Therefore, the opportunity for strata subdivision within P4 in the conservation area is limited, and the proposed strata subdivision on the site will not set an adverse precedence. 4. He assesses that due to the relatively young age of the dwellings across the precinct (of less than 15 years old), the likelihood of other lots of similar size seeking a similar strata subdivision is insignificant. 5. Mr Chapman does not foresee an increase in traffic volume or need for parking that would be contrary to the RDCP 2013. 6. Mr Layman is concerned that the proposed strata subdivision will result in an adverse precedent, whereby lots with existing dwellings and vacant lots within P4 will "become targets for dual occupancy re-development". He considers the outcome of strata title subdivision across the precinct will be a reduction in lot sizes and frontages that are below those in the surrounding area and inconsistent with the Masterplan. 7. He considers the proposed subdivision could result in a change to the desired density and built form, as established in the Masterplan and implemented in the RDCP 2013. As a result of increased density, there will be a loss of street parking due to additional driveways and traffic volumes. Findings 1. The experts accept, and I agree that the requirements for minimum lot size, pursuant to cl 4.1(4)(a) of the RLEP 2012 are not relevant to the proposed development on this site. 2. I agree that that there are no numeric provisions for lot frontage in the E4 Prince Henry Site and P4. The requirements for street frontage are expressed in Section 3 of the RDCP 2013 as an objective, "To ensure that all lots have a primary street frontage". I find that the proposed strata subdivision achieves this objective and is not inconsistent with the other objectives for P4. 3. I accept that the existing dwellings, under the proposed strata subdivision, satisfy the relevant provisions and controls of the RLEP 2012 and RDCP 2013, respectively. 4. Further to this, I find that the potential for other lots of appropriate dimension and location to achieve strata subdivision with "dual occupancy (attached)" dwellings should not constrain the site from the proposed development. Each development application must be assessed on its merits. 5. The Masterplan and the RDCP 2013 specifically seek diversity in housing type and cost through a plan to achieve variable lot sizes and flexibility in the controls. The proposed subdivision is not inconsistent with the requirements for housing diversity, as set out in Section 4.14 of the RDCP 2013, specifically achieving "A mix of housing and apartment types provides housing choice and accommodates a range of household types". 6. I find there is no adverse precedence established as a result of the proposed strata subdivision on the site, and that the proposed subdivision satisfies the objectives of the R1 Zone, as set out in the RLEP 2012, as well as the E4 Prince Henry site and P4, as set out in RDCP 2013. 7. There is no evidence provided that there will be an increase in street parking as a result of either the proposed strata subdivision or that other lots will seek to subdivide in a similar manner and circumvent the intent of the Masterplan. I accept that there are no specific parking controls established in the RDCP 2013 for P4. I therefore agree with Mr Chapman that the proposed subdivision will not result in any additional parking needs for the two proposed strata lots, as the dwellings are already established and if other lots similarly subdivide it will unlikely reduce the availability of parking due to increased driveways, because of the RDCP 2013 control established to protect the streetscape (i.e. single dwelling presentation to dominant street). 8. I agree with the experts that there is no change to either the approved built form or cadastral pattern as a result of the proposed strata subdivision. I have previously found that implementation of the Management Plan will achieve consistency with the requirements for streetscape presentation. I also find that the proposed strata subdivision utilising the existing dwellings on the site (identified in the RDCP 2013 as d66) is not contrary to the built form controls established for this site, which require "Development in Lots D66 and D68 is to match the building alignment of the Flowers Wards opposite, ... ". 9. Therefore, I find that the proposed development, seeking a two lot Strata Title subdivision on the site, is not contrary to the public interest. Orders 1. Consequently, the orders of the Court are as follows: 1. The appeal is upheld. 2. Development Application 410/2017 to subdivide into two lots on Lot 22 DP 286017, also known as 4 Meyler Close, Little Bay is approved subject to conditions of consent in Annexure A, and the Plan of Management in Annexure B. 3. The exhibits, except Exhibits 2, B and G, are returned. ……………………. Sarah Bish Commissioner of the Court Annexure A (119 KB, pdf) Annexure B (66.6 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: 18 January 2019