Whitfield v Sutherland Shire Council [2019] NSWLEC 1056 (8 February 2019)

Last Updated: 13 February 2019

Land and Environment Court New South Wales

Case Name:	Whitfield v Sutherland Shire Council
Medium Neutral Citation:	[2019] NSWLEC 1056
Hearing Date(s):	Conciliation conference on 12 and 20 December 2018
Date of Orders:	8 February 2019
Decision Date:	8 February 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See orders at [21] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sutherland Shire Local Environmental Plan 2015
Category:	Principal judgment
Parties:	Richard Whitfield (Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitors: M Doheny, Sydney Planning Law (Applicant) J Amy, Sutherland Shire Council (Respondent)
File Number(s):	2018/140421
Publication Restriction:	No

JUDGMENT

1. COMMISSIONER: This is an appeal by Richard Whitfield (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Sutherland Shire Council (the Council) of development application DA 17/0992 (the application).
2. The application seeks consent under the EPA Act for subdivision and ancillary works at Lot B DP 407493 being 696 Port Hacking Road, Dolans Bay (the site).
3. The site is an irregular shaped waterfront parcel with a total area of some 2928m² and length of 141.88m. Widths vary from 11m at the street boundary, to 26m at it widest point and 7.6m at the rear (water) boundary. It currently contains a two storey dwelling with garage, swimming pool, paved vehicular and pedestrian access ways, mature trees (primarily within the front setback), and a grassed area at the rear, including adjoining the water. A jetty, ramp and pontoon exist on the waterfront which comprises Port Hacking River at Dolans Bay. The site slopes by some 35m from the street to the water.
4. Surrounding development comprises single and two storey dwellings of varying ages, styles and materials. Directly adjoining the site at 698-706 Port Hacking Road is a dwelling which is listed as a heritage item. The site is adjoined on both side boundaries by a number of dwellings, and access to these dwellings, as a result of former subdivisions or development of originally similar sized lots.
5. The application the subject of the Council’s refusal proposed a three lot subdivision. In a Statement of Facts and Contentions (SFC) filed with the Court, a number of contentions were raised by the Council. These in essence related to the suitability of the site for three lots given constraints to accommodate three dwellings and their access, and the impacts in terms of tree removal and access, and on neighbours (including the heritage item), the street, and the waterfront. Concern was also raised at the lot width of 7.05m for proposed Lot 3 and 11.05m for proposed Lot 2.
6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). As agreement could not be reached, the conciliation conference was terminated and the matter set down for a hearing before me.
7. The hearing commenced onsite. A site view was undertaken and the Court and the parties, including their experts, heard from a number of objectors, principally from neighbouring properties. They raised concerns similar to those raised by the Council.
8. During the hearing, the applicant proposed amendments to address the Council’s contentions and, in particular, the site area and width provisions of the Sutherland Shire Local Environmental Plan 2015 (the LEP). The most significant amendment was to reduce the proposed subdivision from three lots to two.
9. As a consequence of these amendments, the parties sought the matter be listed as a further s 34 conciliation conference. I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties.
10. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
11. The LEC Act also requires me to set out in writing the terms of the decision; s 34(3)(b). The orders made to give effect to the agreement meet that requirement.
12. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met.
13. In this regard, the site is zoned Environmental Living E4 under the LEP and the objectives of that zone are as follows:

To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.
To ensure that residential development does not have an adverse effect on those values.
To allow for development that preserves and enhances the natural landscape setting of the locality.
To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance.
To ensure the character of the locality is not diminished by the cumulative impacts of development.
To minimise the risk to life, property and the environment by restricting the type or level and intensity of development on land that is subject to natural or man-made hazards.
To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development.
To share views between new and existing development and also from public space.

14. Subdivision in the E4 zone is permissible subject to meeting the provisions of the LEP. Whilst clause 4.1 contains objectives for minimum site areas resulting from subdivision, clause 4.1A does not contain any objectives for site widths. The relevant provisions of the clause are as follows:

4.1A Minimum subdivision requirements in certain residential and environment protection zones.
(1) ...
(2) Development consent must not be granted for the subdivision of land in Zone E3 Environmental Management or Zone E4 Environmental Living unless each lot resulting from the subdivision will have:
(a) a minimum width of 18 metres at the building line, and
(b) a minimum depth of 27 metres.
(3) ...

15. Each of the proposed two lots readily meets the minimum site area requirement at clause 4.1 and the 27m depth specified at subcl 4.1A(2). Proposed Lot 1 exceeds the minimum width. Proposed Lot 2 also meets this width other than for a small non-compliance in the south eastern (rear) corner amounting to a 3m² triangular area of land where the width for the nominated required building envelope cannot be met. The parties agreed that it was unclear where the ‘building line’ referenced in clause 4.1A would be for the proposed (rear) Lot 2. However, if it applied to the extent of the building envelope, compliance with the width at the rear south eastern corner could not be met.
16. In support of this minimum lot width non-compliance arising from the amended application, and as required in order for consent to be granted where a variation to the standard is sought, a request under cl 4.6 of the LEP was submitted.
17. The cl 4.6 request is referenced in the orders and was filed with the agreement. I have considered the request as I am required to do and am satisfied that it demonstrates that compliance with the minimum site width required by the LEP for proposed Lot 2 is unreasonable or unnecessary in the circumstances of this application and that there are sufficient environmental planning grounds to justify the contravention sought. Furthermore, that the development will be in the public interest because it is consistent with the objectives for development in the E4 zone in which the site is situated for the reasons outlined in the request.
18. Further, the concurrence of the Secretary of the Department of Planning can be assumed pursuant to cl 4.6(4)(c) and having considered the requirements of cl 4.6(5), also for the reasons outlined in the request.
19. Those reasons, on which my finding of satisfaction on the proposed variation is based, included (in summary) as follows:
    • (1) Full compliance could be achieved for both lots under the provisions of cl 4.1A if the depth of the rear boundary of proposed Lot 1 was reduced. However, it is proposed to retain the existing dwelling house and swimming pool on proposed Lot 1. The swimming pool would need to be removed and additional works undertaken which the parties considered were unnecessary simply in order to achieve a numeric compliance with the LEP given there would be no beneficial outcome as a result for the overall development of the site or for neighbours.
    • (2) Indicative building and access envelopes provided for proposed Lot 2 demonstrated that the proposed lot would still have adequate area to accommodate a dwelling house, garage and its own swimming pool with the dimensions proposed particularly given both lots exceeded 1000m² and that only a small portion of the building envelope for proposed Lot 2 is marginally under the minimum depth requirement of the LEP.
    • (3) In particular, there is adequate depth and area of proposed Lot 2 to enable a new dwelling and associated structures to be developed in accordance with applicable LEP and Council controls, and to achieve the objectives of the E4 zone.
    • (4) Indicative development plans for both lots also indicated that the amount of landscaping provided will exceed the minimum required by the LEP with some tree retention and additional tree planting proposed whilst site disturbance and environmental impacts will be minimised, having regard to the objectives of the E4 zone.
    • (5) The building envelopes for proposed Lot 2 will be sited to have an appropriate interface with the adjacent heritage item.
    • (6) The development maintains or will enable a built form that is consistent with the existing and desired future character of the area in which it is situated.
    • (7) The development will maintain the amenity of its neighbours.
    • (8) No substantive public benefit would be realised by requiring strict compliance with the standard.
20. In addition to compliance with cl 4.6, the other applicable preconditions to consent contained in the LEP have been satisfied.
21. The Court orders:
    • (1) The Applicant is granted leave to amend the development application to rely upon the amended subdivision and civil engineering plans referred to in condition 1 of Annexure A.
    • (2) The Applicant is to pay to the respondent $25,000.00 being the agreed Respondent’s costs thrown away as a result of amending the development application pursuant to s.8.15(3) Environmental Planning and Assessment Act 1979.
    • (3) The Applicant’s written request under clause 4.6 of Sutherland Shire Local Environmental Plan 2015 seeking a variation of the development standard for minimum lot width in the E4 zone set out in clause 4.1A(2)(a) of the of Sutherland Shire Local Environmental Plan 2015 is upheld.
    • (4) The Appeal is upheld.
    • (5) Development Application No. DA17/0992 for the Torrens title subdivision of one lot into two (2), the construction of a driveway and the retention of the existing dwelling and swimming pool at 696 Port Hacking Road, Dolans Bay is approved subject to the conditions in Annexure A.

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Jenny Smithson

Commissioner of the Court

Annexure A

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