of New South Wales
| Record of hearing |
Judge Talbot J
Number 10417 of 1993
10529 of 1993
Parties Applicant Patrial Holdings Pty Limited
Respondent Sutherland Shire Council
Key Issues . Draft LEP - weight
. SEPP 1 objection - relevant consideration of effect of restrictive covenant
. Foreshore building line
. Access - impact on right of way and right of footway
. Dwelling - impact on waterway
Hearing dates 30 November - 1 December 1993, 13 - 17, 24 March 1995
Judgement Reserved
Date of judgement 29 March 1995
Appearances Applicant Mr W R Davison SC
Respondent Mr M D Young (Barrister)
Solicitors Applicant Willis & Bowring Solicitors
Respondent Owen Hughes
Number of pages 15 plus attachments
Summary of orders
. Development application for subdivision refused
. Development consent for dwelling
IN THE LAND AND MATTER No. 10417 of 1993
ENVIRONMENT COURT 10529 of 1993
OF NEW SOUTH WALES CORAM: Talbot J
DECISION DATE: 29 March 1995
Respondent
Properties in Woolooware Road at Burraneer, near Cronulla in the Sutherland Shire, in many cases, enjoy pleasant and expansive views of Burraneer Bay and Gunnamatta Bay. The subject property is in that category, enjoying views to the west across Burraneer Bay and into Dolans Bay within Port Hacking.
The site is presently developed with a substantial dwelling known as No. 399A Woolooware Road South. The land is Lot 4 in DP 205947 containing an area of 1 acre, 2 roods, 231/4 perches (according to the designation of area used when the Deposited Plan was registered in 1961). It enjoys the benefit of a right of way providing access through Lot 1 to Woolooware Road South, in conjunction with the owners of Lots 2, 5 and 6.
The use of the right of way is not currently exercised by the present owner of Lot 2. Lots 5 and 6 have the benefit of a right of way across Lot 4 to Lot 1. Lot 4 also enjoys the benefit of a right of way across Lot 3 DP 231515 to Goobarah Road although it is not used at the present time.
Lot 4 is shaped like a dumbbell. The western section, including a narrow corridor, comprises about 2,400 m2. The eastern, rectangular section comprises approximately 4,200 m2.
There are two proposals the subject of these proceedings.
The first appeal relates to a proposal for subdivision of Lot 4 into four separate allotments.
It is proposed that the eastern section of Lot 4 be subdivided into three lots. The western section, together with the narrow corridor, comprises the fourth lot.
The pattern of subdivision is best understood by reference to a plan and accordingly a copy of the plan of proposed subdivision is attached marked A.
The second proceedings are an appeal in respect of a development application to construct a dwelling on Lot 410. The proposed dwelling and the same plans were the subject of an earlier development application lodged with council on 12 October 1988. On 20 February 1989 the council adopted a recommendation to the effect that the development application be approved subject to conditions including:-
(a) A Certificate of Title being issued in respect of Lot 42 (the waterfront allotment).
(b) The garage and driveway designs being amended.
No Notice of Determination was ever issued by the council.
In a challenge to the validity of the development consent granted by the council on 20 February 1989, Hemmings J in J A Currey -v- Sutherland Shire Council and Patrial Holdings Pty Limited No. 40070 of 1989 30 November 1989 (Unreported) decided that the challenge to the validity of the development consent had failed notwithstanding the lapse of relevant subdivision approvals for the land. No issue as to the lawfulness of the condition requiring the issue of a separate Certificate of Title in respect to Lot 42 was raised before Hemmings J. Noting such Certificate could not be issued unless the land is lawfully subdivided, he expressed an opinion, obiter, that even though such condition may compel the owner to seek and obtain other approvals, it was, in his opinion, intra vires council; cf. Grace Bros Pty Ltd -v- Willoughby Municipal Council & Ors (1980) 44 LGRA 422. In any event no separate Certificate of Title has ever been issued. The proposed subdivision, considered by Hemmings J, created two separate allotments (Lots 41 and 42). That contrasts to the present proposal for four allotments.
Pursuant to a Deed of Agreement in 1970, the height of any development on the waterfront portion of the land was restricted to a maximum of 15.24 metres (50 feet) above Standard Height Datum (the mean high water mark). The dwelling house approved in 1989, and hence the present proposed building, complies with the restriction set by the covenant. It is clear that the height restriction was set to preserve the views across Burraneer Bay for the dwellings on Lots 4, 5 and 6.
It is a consequence of the restrictive height covenant that any building proposed in the western end of the dumbbell must be located within a foreshore building line approximately 30 metres from the mean high water mark pursuant to Sutherland Local Environmental Plan 1993 (the LEP).
The land is situated within zone 2(e2) Residential under the LEP.
Within that zone cl 19 of the LEP sets a minimum area for a standard lot of 873 m2 and 1,012 m2 for an internal lot. An internal lot is any lot that does not have full frontage to a road or a waterway and relies on access via an access corridor (a hatchet-shaped lot) or a right of carriageway over another lot. Clause 19 specifies that the area of an access corridor is not taken into account in determining the area of an internal lot.
However, cl 19(2) allows subdivision with a minimum lot size of 450 m2 if:
"(a) development is not significantly restricted in relation to building design and the provision of ancillary facilities; and
(b) development will result in a satisfactory relationship between buildings on adjoining lots; and
(c) development will minimise the loss of vegetation; and
(d) development will not be subject to risk, such as bushfire, flood, slip and the like"
There has been considerable debate about how the area of an internal lot should be determined for the purposes of cl 19.
The natural meaning of these words and the apparent intent of the draftsman to identify the useable area of a lot for building purposes, leads to the conclusion that an access corridor which is referred to is that part of a hatchet-shaped lot which forms the handle or corridor providing access to the main part of the land. The area of a servient tenement cannot be part of a lot, in any event. The council has argued strenuously that the areas of proposed rights of carriageway within an internal lot should be excluded from the calculation of minimum area. According to the plain meaning of the words in cl 19, the intention is to take account of only that part of the land which provides the curtilage to any dwelling. The fact that some part of that land is the subject of a right of carriageway does not detract from that intention as it will still form part of the area attached to the dwelling house and forming part of the one enclosure.
The proposed Lot 411 has a gross area of just under 940 m2 whereas proposed Lot 412 will contain just over 1,000 m2. With the area of proposed rights of way excluded, if that is relevant, they will be respectively approximately 845 m2 and 690 m2. Whatever view is taken of the area of an access corridor, neither of these lots comply with the minimum lot size of 1,012 m2. It is necessary therefore for the applicant to rely on cl 19(2).
The council cautions in this regard that, because a draft LEP is being considered which sets the same minimum standard for a lot size without provision for any concession, any application of cl 19(2) should be carefully considered. Further the council suggests that the application of cl 19(2) to land in the 2(e2) zone was almost certainly a drafting mistake, having regard to the objectives of the zone. There is no evidence to support the latter submission.
In addition to the minimum lot size control and the foreshore building line, the draft LEP introduces floor space ratio and landscaped area controls. In the case of the subject land, if the draft LEP is made, then a minimum of 55 per cent of the area must be landscaped. A landscaped area is defined in the draft LEP as follows:-
"Landscaped area means that part of a site which is not occupied by any building and is available for use and enjoyment by the occupants of the building erected on the site. It includes areas used for open-air recreation areas, gardens, lawns, shrubs or trees, but does not include areas used for driveways, parking areas, drying yards, garbage storage areas or swimming pools."
If proposed Lot 412 was required to set aside 55 per cent of its gross area as landscaped area within that part of the Lot not affected by the right of way, approximately 100 m2 will remain to accommodate on-site parking, turning areas and a dwelling. The council relies on this calculation to suggest that the proposed subdivision will result in over-development. The trouble with the council's case in that respect is that there is no strong likelihood that the LEP will be made or if it is, there can be no certainty that SEPP 1 would not be applied in respect of any application to erect a dwelling on Lot 412.
If the draft LEP is to be given little or no weight then, whether proposed Lots 411 and 412 are satisfactory falls to be decided under cl 19(2). The applicant suggests that because the draft LEP is contrary to the policy of urban consolidation, it is unlikely to find favour with the Minister. The original draft LEP that was certified pursuant to s 65 of the EPA Act has been changed by significant alterations made in February of this year. In the circumstances, there is no reason to give the draft LEP decisive weight because there is no evidence it is inevitable that it will be made in any particular form. There is no more than an unsubstantiated hint or suggestion that the making of the final plan is imminent.
In addition to the LEP, the council subdivision code embraces the same minimum lot sizes but adds an additional requirement for a minimum area of 1,000 m2 excluding the area of any right of carriageway for internal lots.
One of the objectives of the zone is a low density residential environment in an environmentally sensitive locality which is protected from over-development particularly where development is within view of a waterway.
Council witnesses concentrated on the constraints on siting and design of any building on proposed Lot 412. Although the actual area will be in excess of 1,000 m2, about half of that area will be available for building after taking account of the area required for the right of way and an easement for services along the southern boundary. Further constraints will be created by the need to maintain sight lines at a bend in the right of way. The subdivision code requires provision for the parking of three cars and a turning area. The existing large dwelling on the adjoining proposed Lot 413 will have outdoor terraces and windows looking towards the water immediately adjacent to the boundary.
Proposed Lot 411, although comprising a smaller area, will have about 840 m2 which can be built on. Two houses built with a frontage to Goobarah Road are in close proximity to the boundary. Although the existing house on proposed Lot 413 is not as close to Lot 411, it will nevertheless suffer significant overlooking and require parking and turning space for three cars if the provisions of the subdivision code are to be recognised.
Proposed Lots 411 and 412 are interposed between the existing houses on proposed Lot 413 and existing Lots 5 and 6.
It is proposed that access to Lot 412 will be along the right of way to Woolooware Road South whereas Lot 411 will have the benefit of a right of way to Goobarah Road across Lot 3 in DP 231515.
The right of way across Lot 1 is already burdened by the traffic from three existing residences. Since 1989, when the dwelling house on the waterfront was approved, there has been the prospect of traffic from a fourth dwelling using that right of way.
The Court has heard from most witnesses, both lay and expert, about concerns relating to the impacts of placing additional traffic along the existing access way.
The Court accepts that sound planning principles dictate that the traffic over the right of way should be kept to a practical minimum. The users of the right of way are generally persons who will be aware of its limitations. It will not be used in the manner of a public street. Its configuration and location within the housing allotments mitigates against excessive speed or careless driving. A number of improvements to the right of way have been suggested by the applicant's expert, Mr Masson, and these should be adopted.
Some parts of the right of way will accommodate two way traffic, sight lines in the vicinity of blind corners are improved and potential traffic will be reduced. A waiting bay within the road alignment in Woolooware Road South at the entrance to the right of way suggested by council is an aberration and should not be encouraged.
However there remains an opportunity to limit the amount of traffic using the right of way if access to the area covered by the proposed Lots 411 and 412 was to be confined to the right of way leading to Goobarah Road.
The constraints on the siting and design of any building on Lot 412 in particular, but also Lot 411, add weight to the Court's concern that subdivision into four allotments as proposed will result in over-development.
After having regard to the whole of the evidence and having carefully considered the submissions made on behalf of the parties, the Court has concluded that Lots 411 and 412 should be consolidated and that traffic from the consolidated lot should be directed to Goobarah Road along the right of way over Lot 3. The owner of Lot 3 objects to the subdivision on the basis that, as the right of way over his land is not currently utilised, the adverse impact from increased traffic will be unacceptable. However, the area of the right of way is presently built as a driveway and is used for that purpose by the owner of Lot 3. Having purchased the property with the burden of the right of way, the owner of Lot 3 should not be surprised that the owner of the dominant tenement proposes to exercise its rights to gain access along the right of way to Goobarah Road. The right of way also adjoins Lot 2 Goobarah Road and the owner of that land objects to its use for the purpose of providing access to the subject land. Originally the proposal was for access to be provided for the benefit of more than one lot in the subdivision. Having regard to the proximity of Lot 2 to the driveway, it is, in the Court's opinion, appropriate that access be limited to one allotment.
The effect of the consolidation of Lots 411 and 412 will be to facilitate development of that land compatible with the existing residence on proposed Lot 413 with due respect to the amenity of the other adjoining properties.
Although the owner of Lot 1 over which the right of way runs will be subjected to increased traffic, she should never have been under any apprehension that the land having the benefit of the right of way would not be subdivided in the future to some extent. The owner of Lot 2 which adjoins the right of way over Lot 1 similarly could not have reasonably expected the status quo to be maintained indefinitely.
The impact of additional traffic on either right of way is one of degree. By limiting the opportunity for development on Lots 411 and 412 and restricting the means of access, the Court is satisfied that the result will be acceptable.
Although I was invited to approve the subdivision conditioned to the consolidation of Lots 411 and 412, I am not prepared to do this. The resolution of the problem is not necessarily as simple as removing the boundary between the two proposed lots. This may ultimately prove to be the case, but some consideration will now need to be given to whether the area of the existing right of way should be maintained within the consolidated allotment or incorporated within another lot having regard to the prospect that access to the consolidated lot will be from Goobarah Road. That is not a matter for great concern but nevertheless, the implications arising from consolidation have not been sufficiently considered in these proceedings and should be the subject of a separate application. Having regard to the state of the evidence before me, there is no reason in principle why a subdivision of the land should not be approved on the basis that the area originally proposed for Lots 411 and 412 be consolidated into one allotment.
The application for subdivision will be refused.
THE DWELLING HOUSE
There are a number of matters relating to the proposed dwelling house which have decisive weight.
One of the primary matters is that the dwelling will be built within the foreshore building line. Construction elsewhere in the western section of the allotment is restricted by the terms of the restrictive covenant. I see no reason why, as a matter of public policy, or anything else, that private agreements which constrain development of land for the benefit of other land owners should not be taken into account as a relevant consideration in the exercise of the planning discretion under SEPP 1.
The architect has designed the house so that it sits below the cliff line. Its form can be broken up by maintaining existing vegetation to the extent proposed. The existing boat shed will be reduced in shape and size thereby reducing the combined impact of the built forms when viewed from the waterway.
From the point of view of interruption of views to the water from Lots 5 and 6 and the existing residence on Lot 4, the positioning of the building, where proposed, has significant advantages.
The shoreline when viewed from the bay is characterised by substantial dwellings located at the top of the cliff with one or two exceptions. It is my opinion that a house of the proportions that might be expected in such a location will have significant impact on the aspect from the bay if built on top of the cliff and outside the foreshore building line. Irrespective of the constraints imposed by the covenant, it is not unreasonable to accept that the location of a dwelling house below the top of the cliff is a preferable option.
It is also relevant to note that exactly the same building and plans were approved by council in 1989.
I agree with Mr Byrnes that the new dwelling has the potential to have a positive visual effect and that the final result will sustain a large area of conspicuous foreshore land in a natural state above the proposed building. The silhouette of the building will, from most aspects, be outlined by the natural rock features to be retained, enhanced by additional landscaping which is proposed. It will be set below the escarpment by approximately two metres. The integration of masonry elements and solid stone features will provide a compatible relationship with the remaining rock outcrop.
By variation in the line of the house, the building will not present as a stark square structure above the foreshore.
The objectives of the foreshore building line are stated in the LEP as follows:-
"(a) preservation and enhancement of the natural features and vegetation of the area where the land meets the water;
(b) restoration of the land below the foreshore building line, so far as practicable, to a natural state, with a minimum intrusion of man-made structures;
(c) no development below the foreshore building line other than development excepted by this clause;
(d) a significant reduction in the number of structures below the foreshore building line, particularly on redevelopment;
(e) conservation and enhancement of waterfront development of heritage value; and
(f) avoidance of pollution of, or adverse ecological effects on, the waterways."
In addition, the draft LEP, in cl 23, will require an applicant to demonstrate to council that it has considered the following and council must take into consideration the following inter alia:-
"5. the retention and enhancement of significant existing vegetation;
6. any adverse impacts on the natural and built environment;
8. the impact that new development may have on any public area or waterway from loss of sunlight, views and visual amenity."
Although the proposed development is not excepted elsewhere in cl 21, the proposal is an appropriate solution for development of the site and the preservation and enhancement of the natural features and vegetation of the area. The building will appear only as a minimal intrusion.
The prospect of pollution or other adverse ecological effect on the water way is only relevant during construction. The imposition of strict conditions to control the escape of any material into the bay during construction can ensure that any pollution is avoided in this respect.
Although the building will be visible from the water, its outline will be fragmented and disjointed with the result that it will be unobtrusive.
Considerable concern was expressed that the building could not be constructed without interfering with a right of foot way which exists across the land for the benefit of Lot 6. The Court has not been satisfied that it will necessarily result in the loss of benefit of the right of footway. This, in any event, is a matter for private negotiation and agreement. There is no real prospect that the right of footway will be interfered with other than during the period of construction and that will be a matter strictly between the builder of the house and the owner of Lot 6.
Considerable attention was paid to the prospect for the large excavation required for the driveway to impact upon views of the site from the waterway and as a hazard, particularly to young children. Having listened to the whole of the evidence in this regard and having read the reports and studied the plans and diagrams produced, I am satisfied that the driveway, despite the large cut, is unlikely to be casually observed from the waterway. A close study might disclose its presence. The impact in this regard will be minimal, particularly after landscaping around the edge has been developed and proposed retaining walls completed. It is unlikely that adjoining properties will be able to look down into the excavation. Rather, their view will be across the top to the land and bay beyond. The construction of the retaining walls will act as a deterrent to any unsuspecting person unfamiliar with the land from approaching the excavation. The prospect of any person, including a young child, falling down into the excavation on this private land is remote. If this concern remains at the building application stage then it will be open to the council to insist upon the erection of suitable constraints.
In all of the circumstances it is appropriate that development consent should be granted in respect of the dwelling house subject to the land identified as proposed Lot 410 being subdivided out of Lot 4.
The objection pursuant to SEPP 1 that compliance with the foreshore building line is unreasonable or unnecessary in the circumstances of the case, is upheld for the reasons that I have outlined.
ORDERS
Proceedings No. 10417 of 1993
1. Appeal dismissed.
2. Application for Development Consent for the subdivision of lot 4 DP 205947 into four allotments is determined by the refusal of consent.
3. No order as to costs.
4. The exhibits may be returned.
Proceedings No. 10529 of 1993
1. Appeal upheld.
2. Application for Development Consent for the erection of a new residence and renovated boat shed on Part Lot 4 DP 205947 is determined by granting development consent subject to conditions attached marked B.
3. No order as to costs.
4. The exhibits, except Exhibit 8, may be returned.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 14 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGEMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT
ASSOCIATE
PATRIAL HOLDINGS PTY LIMITED -v- SUTHERLAND SHIRE COUNCIL
ATTACHMENT B
1. The development shall be implemented substantially in accordance with the details set out in the drawings prepared by Allan Dukes, architect, and identified as:
88/20 SP;
88/20 E;
88/20 1;
88/20 2;
88/20 3;
Sheet 4;
Sections A, B, C, D, E, F & G;
Perspective view from the foreshore;
Section through driveway;
Birds eye view of proposed driveway; and
Section through driveway (Plan 88/20 DW)
all forming part of Exhibit 8 in Land and Environment Court Proceedings No. 10529 of 1993 except as amended by conditions specified hereunder.
2. A detailed plan of survey shall be submitted verifying the existing and proposed levels of the site, with particular reference to all corners of the proposed dwellings. This is to be prepared by a registered surveyor and submitted with the Building Application.
3. A geotechnical report shall be prepared by a suitably qualified practising geotechnical engineer, certifying the structural adequacy of the rock strata below the site of the proposed dwelling. This shall be submitted with the Building Application.
4. There shall be no construction of retaining walls or land fill on the foreshore of the subject land.
5. A detailed management plan shall be submitted with the Building Application, outlining;
i) the method of excavation to be employed in the construction of the proposed dwelling;
ii) the method of removing spoil from the site; and
iii) details of erosion control methods to be utilised to prevent and control erosion, runoff and siltation of the adjacent waterway during construction.
6. A plan and specification of the proposed landscaping, prepared by a suitably qualified landscape consultant, shall be submitted for council's approval prior to the release of approved building plans. The details to be submitted are to include the position in which each shrub and tree is proposed to be planted, identification of each plant by a reference number referring to a legend on the plan specifying in tabulated form the botanical name, common name, expected height and (if a flowering species) colour.
7. All approved landscaping shall be maintained at all times to the satisfaction of the council.
8. All excavated material (other than required for fill) to be removed from the site by water subject to the following:
(a) The applicant shall submit to council for approval with any building application the proposed means of transportation of excavated material by water and will nominate the type of vessel to be used, the method of loading and unloading that vessel, the point of transfer of material onto land, the route to be taken to the disposal point and the point of disposal of material.
(b) The applicant shall submit to council for approval with any building application the proposed means of preventing sediment transfer into the waterway at the point of loading and unloading the excavated material.
(c) The applicant will submit an environmental damage security bond to the value of $5,000 as a surety against any sediment being deposited into the waterway system at the point of loading and unloading or of any environmental damage being caused to the foreshore and waterway areas.
(d) The applicant will submit to council for approval with the BA the proposed means of transporting the excavated material from the excavation to the transport vessel.
9. Subdivision of Lot 4 DP 205947 to create a separate allotment in respect of that part of Lot 4 shown as Lot 410 in plan of proposed subdivision prepared by Gary Fuller Registered Surveyor on 16 December 1992 a copy of which is attached marked A to the judgement of Talbot J in Land and Environment Court proceedings No. 10417 of 1993 and 10529 of 1993.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 4 PAGES ARE A TRUE AND ACCURATE RECORD OF ATTACHMENTS MARKED A AND B ATTACHED TO THE REASONS FOR JUDGEMENT OF THE HONOURABLE JUSTICE R N TALBOT
ASSOCIATE
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