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Addendum Agenda - Ordinary Meeting – Monday 27 March 2023 Page 0 |
CL23.100 SF10948 – 13 Silver Sands Dr – Lot 6 DP 234796
DA. No: SF10948
HPERM Ref: D23/79503
Department: Development Services
Approver: James Ruprai, Director - City Development
Attachments: 1. Draft Notice of Determination ⇩
2. Section 4.15 Assessment Report ⇩
3. Subdivision Plan ⇩
Description of Development: One (1) into Two (2) Lot Torrens Title Subdivision of Existing Dual Occupancy
Owner: Majo Property Investments Pty Ltd, A J Schlaphoff, G P Schlaphoff
Applicant: Planning Development Commercial Lawyers Pty Ltd
Notification Dates: Notification not required in accordance with Section 3.3.1, Table 2 of the Community Consultation Policy. (Note: the proposal is for subdivision of an existing approved development. There is no material change to the development.)
No. of Submissions: NIL
Purpose / Reason for consideration by Council
In accordance with Planning System Circular No. PS20–002, the Secretary’s concurrence may not be assumed by a delegate of Council if the development contravenes a numerical standard by greater than 10% (a 36.08% variation to the development standard is proposed). Variations of this nature are instead required to be considered by the Council.
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That Council: 1. Confirm that it supports the clause 4.6 variation of 29.9% for Lot 1 and 36.08% for Lot 2, with respect to the lot size of the proposed subdivision. 2. Approve the Development Application SF10954 for a one (1) into two (2) lot Torrens title subdivision of an existing and approved Dual Occupancy development at Lot 6 DP 234796 13 Silver Sands Drive, Berrara, as detailed in the draft conditions of consent (Attachment 1) to this report.
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Options
1. That Council approve the recommendation as printed.
Implications: This would permit the subdivision of the subject site to go ahead. It is considered that support of the development would not jeopardise or lead to an abandonment of the minimum lot size requirement under cl. 4.1 of Shoalhaven Local Environmental plan 2014 (SLEP).
This is due to the subdivision of dual occupancy development beneath the minimum lot size in the R2 Low Density Residential zone is permitted under cl. 4.1A(4).
Council has recently approved a similar DA at 68 Yeovil Drive Bombaderry (SF10873) and 111 Elizabeth Drive Vincentia (SF10923) at the Development & Environment Committee on 7 September 2021 [MIN21.623] and Ordinary Council Meeting on 9th of May 2022 [MIN22.327] respectively.
2. Refuse the Development Application (DA).
Implications: The development is unable to proceed as applied for. The applicant can, however, apply for a section 8.2A review of Council’s decision and/or could lodge an appeal with the NSW Land and Environment Court (LEC) against Council’s decision.
3. Adopt an alternative recommendation.
Implications: Council will need to specify an alternative recommendation and advise staff accordingly.
Figure 1 – Locality Plan
Figure 2 – Site Shown Highlighted in Yellow
Background
Proposed Development
The proposed development is to subdivide the approved attached dual occupancy dwelling that was approved on Lot 6 DP 234796 under DA17/1900 on 4th April 2018.
A subdivision plan prepared by Andrew George Johnson dated 29th January 2021 is included at Attachment 3.
A summary of the proposed lots is as follows:
• Proposed Lot 1 – is approximately 350.5m2 with approximate average width of 7.75m and depth of 41.6 that fronts Silver Sands Drive.
• Proposed Lot 2 – is approximately 319.6m2 with approximate average width of 7.955m and depth of 40.9m that fronts Edward Street.
The proposal is for subdivision only (of an existing and approved development) and therefore, the physical environment does not change from what was proposed in DA17/1900. No vegetation removal results from the proposal.
The proposed subdivision can be seen below in Figure 3:
Figure 3: Subdivision Plan
Subject Land
The property is Lot 6 DP 234796 which is located at 13 Silver Sands Drive, Berrara (Subject Site). The subject site is approximately 1.6km south from the Cudmirrah village centre.
The site has an area of 670.1m2, is irregular in shape and slopes slightly from the Northern boundary to the Southern boundary of 2.1m.
Site & Context
The site currently contains two (2) class one (1) dwelling houses and is bounded by low-density residential development to the north, south, east, and west. The dual occupancy subject to the subdivision application was constructed in 2019 with the Final Occupation Certificate issued in May 2020.
The locality is made of up of a combination of zonings. The subject site and most of the lots west, north, and east is zoned R2 Low Density Residential and the land to the south of subject site is RE1 Public Recreation. See Figure 4 below:
Figure 4: Zoning Map – SLEP 2014
Issue 1
Clause 4.1 – Minimum Subdivision Lot Size of SLEP 2014
The objectives of this clause are:
(a) to ensure that subdivision is compatible with, and reinforces the predominant or historic subdivision pattern and character of, an area,
(b) to minimise any likely impact of subdivision and development on the amenity of neighbouring properties,
(c) to ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls.
The SLEP 2014 includes a minimum lot size map, which overlays different minimum lot size requirements for land throughout the Local Government Area (LGA).
A minimum lot size of 500m2 (I) applies to the site.
Development Standard to be Varied
The application seeks a variation to clause 4.1 Minimum subdivision lot size in accordance with clause 4.6 of SLEP 2014.
Clause 4.1 (3) states:
(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.
Extent of Variation
The table below outlines the proposed subdivision lot sizes and the extent of the variation under SLEP 2014 for each proposed lot.
Table 1. Clause 4.6 variation under SLEP 2014
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Parent Lot = 670.1m2 |
Lot size |
Minimum lot size under SLEP 2014 |
Extent of variation |
Departure to development standard |
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Proposed Lot 1 |
350.5m2 |
500m2 |
- 149.5m2 |
29.9% |
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Proposed Lot 2 |
319.6m2 |
500m2 |
- 180.4m2 |
36.08% |
Under clause 4.6(4) of the Shoalhaven Local Environmental Plan (SLEP) 2014, development consent is not permitted to be granted for development that contravenes a standard unless the consent authority is satisfied that:
· the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and
· 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.
Written Request Provided by Applicant
The applicant has submitted a written request to justify the contravention of the development standard. Council is required to consider subclauses (3), (4) and (5) of Clause 4.6. Clause 4.6(3)-(5) are extracted from SLEP 2014 below:
(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.
Council must be satisfied that the abovementioned clauses have been addressed prior to granting development consent.
Clause 4.6(3)(a) – Compliance with the Development Standard is Unreasonable or Unnecessary in the Circumstances of the Case
To assess whether compliance with a development standard is unreasonable or unnecessary, the Land and Environment Court (LEC) has provided guidance in the required assessment.
This guidance has particular reference to the accepted "5 Part Test" for the assessment in Wehbe v Pittwater Council [2007] NSWLEC 827 noting also the principles outlined in Winten Developments Pty Ltd v North Sydney Council [2001] NSWLEC 46 and further clarified by Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118.
The “5-part Test” is outlined as follows:
1. The objectives of the development standard are achieved notwithstanding noncompliance with the standard.
2. The underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary.
3. The underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable.
4. The development standard has been virtually abandoned or destroyed by the Council’s own decisions in granting development consents that depart from the standard and hence compliance with the standard is unnecessary and unreasonable.
5. The zoning of the particular land on which the development is proposed to be carried out was unreasonable or inappropriate so that the development standard, which was appropriate for that zoning, was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in the circumstances of the case would also be unreasonable or unnecessary.
The applicant does not rely on part 4 or 5 of the ‘5 Part Test’ as it is not considered applicable. The argument put forward is focussed on parts 1 – 3.
· Part 1 The objectives of the development standard are achieved notwithstanding noncompliance with the standard.
The following table outlines the respective objectives of the minimum lot size requirement and the applicant’s comments regarding how the proposed development is achieving the objective.
Table 2 – Zone Objectives
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Clause 4.1 – Minimum Subdivision Lot Size |
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Objective |
Applicant Comment |
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To ensure that subdivision is compatible with, and reinforces the predominant or historic subdivision pattern and character of, an area, |
The subdivision proposed will be compatible with the historic subdivision pattern of the area. |
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To minimise any likely impact of subdivision and development on the amenity of neighbouring properties, |
The subdivision of the site into two lots in the manner proposed will unlikely result in any unacceptable amenity impacts for neighbouring properties. |
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To ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls. |
The lots proposed are of a regular shape and of such a size that developing the same could be carried out in full compliance with Council’s DCP. |
· Part 2 - The underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary
The underlying objectives and purpose of the minimum subdivision lot size are relevant to the proposed development.
The underlying objective and purpose of the standard (clause 4.1 – Minimum Lot Size) is relevant and the above assessment has revealed that compliance with the objectives has been achieved notwithstanding the non-compliance with the numerical standard.
It is worth noting that compliance in this case is unnecessary, as the respective subdivision for dual occupancy development beneath the minimum lot size in the R2 Low Density Residential zone is now permitted under cl. 4.1A (4).
· Part 3 - The underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable.
There is no utility in maintaining the minimum lot size development standard under cl. 4.1 in this case, as the respective subdivision for the dual occupancy beneath the minimum lot size is permitted under cl. 4.1A (4).
It is specifically noted that Council has recently approved a similar DA at 68 Yeovil Drive Bombaderry (SF10873) and 111 Elizabeth Drive Vincentia (SF10923) at the Development & Environment Committee on 7 September 2021 [MIN21.623] and Ordinary Council Meeting on 9 May 2022 [MIN22.327] respectively.
Clause 4.6(3)(a) Evaluation of the written request relating to Clause 4.6(3)(a)- Compliance with the development standard is unreasonable or unnecessary.
The consent authority must form the positive opinion of satisfaction that the applicant’s written request(s) have adequately addressed those matters required to be demonstrated by clause 4.6(3)(a). The applicant has applied the first test established in Wehbe v Pittwater that the development standard is unreasonable or unnecessary in the circumstances of the case because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.
The following justifications are made by the applicant:
It is noted that in addition to the objectives of Clause 4.1, Clause 4.1A (4) of the SLEP2014 also provides a framework for council to grant consent for subdivision into separate lots for dual occupancy (attached) in the R2 zone if the parent lot is equal or greater than 500m2.
Clause 4.1A (4) explicitly permits variations to the minimum lot size standard subject to both the proposed dual occupancy and subdivision being considered as a single DA. Clause 4.1A (4) was gazetted on 11 August 2020 as Amendment 35 of SLEP 2014 subsequent to the consent for the dual occupancy being issued on 4 April 2018 under DA17/1900.
As such, compliance with the Clause 4.1A (4) would render compliance with the minimum lot size standard unreasonable and unnecessary. The proposed development is consistent with Clause 4.1A (4), (demonstrated in the SoEE), and therefore compliance with Clause 4.1 is unreasonable and unnecessary as the dual occupancy development already exists.
Comment: The above justification is considered reasonable. It is recommended that the consent authority can form the positive opinion that the applicant’s written request(s) has satisfied clause 4.6(3)(a).
Clause 4.6(3)(b) Evaluation - There are sufficient environmental planning grounds to justify contravening the development standard
The consent authority must form the positive opinion that the applicant’s written request has adequately addressed those matters required to be demonstrated by clause 4.6(3)(b).
To demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard, Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, held that the grounds relied upon by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26].
The adjectival phrase “environmental planning” is not defined but would refer to grounds that relate to the subject matter, scope, and purpose of the Environmental Planning and Assessment Act 1979 (EPA Act,) including the objects in s 1.3 of the EPA Act.
The environmental planning grounds relied on in the written request under cl 4.6 must be “sufficient” (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [24]). In [24] of the judgment, Preston CJ outlined the two methods for demonstrating that a Clause 4.6 is “sufficient” at paragraph [24] of case as follows:
First, the environmental planning grounds advanced in the written request must be sufficient “to justify contravening the development standard”. The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15].
Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31].” The applicant’s clause 4.6 variation request must provide a written justification that there are sufficient environmental planning grounds to justify contravening the development standard.
Applicant’s Response:
The Environmental Planning grounds in favour of the variation are as follows:
a. The dual occupancy has already been constructed and the proposed subdivision will not physically change the appearance of the surrounding environment.
b. The proposed lot size variation will not generate any unacceptable adverse environmental impacts in respect of overshadowing, view loss or privacy impacts.
c. The land is not steep.
d. Each lot has direct frontage to a public road.
e. The lots are located in a high amenity area with good access to the nearby beach and foreshore reserve.
f. The site is not mapped as being affected by coastal hazards / erosion.
g. The proposal, if approved, will not result in any inconsistencies with other environmental planning instruments.
h. The site is within an established residential area comprising a range of lot sizes. The locality is one subject to urban renewal through redevelopment and use of vacant land as well as replacement of existing housing stock.
i. The proposed subdivision will not impact on either the built or natural environment in any substantial away. In this regard;
i.It will not result in any substantial changes to the established streetscape qualities of the area;
ii.The act of subdividing will not directly impact on neighbouring properties. Future development will be subject to building application requirements where issues including overshadowing, noise, and privacy will be addressed. The new building site would have good separation distances to adjoining dwellings.
iii.The act of subdividing the site will not result in any substantial changes to traffic volumes in the locality;
iv.Subdividing the site will not necessitate removal of any existing important vegetation;
Comment: The above justification has outlined the environmental planning grounds for the departure. It is recommended that the consent authority can form the positive opinion that the applicant’s written request(s) has satisfied clause 4.6(3)(b).
Clause 4.6(4)(a)(ii) Evaluation – Public Interest
Clause 4.6(4)(a)(ii) states that development consent must not be granted for development that contravenes a development standard unless 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.
Pursuant to the provisions of the SLEP 2014 the land is zone R2 Low Density Residential, the objectives of which 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 provide an environment primarily for detached housing and to ensure that other development is compatible with that environment
The proposed subdivision will continue to provide for the housing needs of the community. This is exhibited in the proposed subdivision creating separately titled lot for an existing dwelling in a dual occupancy development.
The proposed development is consistent with the objectives of the R2 zone. Under these circumstances the proposed development is in the public interest.
Clause 4.6 (b) – Concurrence of the Secretary
The Council assumes the concurrence of the Secretary in this instance, when considering the application.
Clause 4.6(5)(a) - Matters of Significance for State or Regional Planning
The non-compliance with the minimum subdivision lot size requirement development standard will not raise any matter of significance for State or Regional planning.
Clause 4.6(5)(b) - Public Benefit of Maintaining the Planning Control Standard
In the judgement of Ex Gratia P/L v Dungog Council [2015] (NSWLEC 148), Commissioner Brown of the NSW LEC outlined that the question that needs to be answered in relation to the application of clause 4.6(5)(b) is “whether the public advantages of the proposed development outweigh the public disadvantages of the proposed development”.
Comment: The applicant has demonstrated that the non-compliant lot-size will provide a better planning outcome as opposed to strict compliance with the development standard or amending the application to reduce or remove the extent of the variation.
Furthermore, there is no public benefit for strict compliance with cl.4.1 as the subdivision of dual occupancies is permitted beneath the minimum lot size requirements under cl. 4.1A (4) of the SLEP 2014.
Clause 4.6(5)(c) - Other matters
No other matters need to be taken into consideration by the Secretary
Planning Assessment
The DA has been assessed under s4.15 of the Environmental Planning and Assessment Act 1979. Please refer to Attachment A.
Consultation and Community Engagement:
Pursuant to Section 3.3.1, Table 2 of Council’s Community Consultation Policy, development which involves a two (2) lot Torrens subdivision of an approved dual occupancy development is not required to be notified within the surrounding locality. This is because the subject application does not involve any significant physical works, does not change the approved development noting also that notification was already carried out as part of the assessment of the dual occupancy development within Council’s approved Development Application No. DA17/1900.
Note: minor works are required by Shoalhaven Water – the Notice explains that sewerage is to be made available to each lot which requires a separate junction(s).
Financial Implications:
There are potential cost implications for Council in the event of a refusal of the application. Such costs would be associated with defending an appeal in the Land and Environment Court of NSW.
Legal Implications
Pursuant to section 8.2 of the EPA Act, a decision of the Council may be subject of a review by the applicant in the event of an approval or refusal. If such a review is ultimately pursued the matter would be put to Council for consideration.
Alternatively, an applicant may also appeal to the Court against the determination pursuant to section 8.7 of the EPA Act.
Summary and Conclusion
This application has been satisfactorily assessed having regard for section 4.15 (Evaluation) under the Environmental Planning and Assessment Act 1979.
Having regard to the assessment and the matters described in ‘Issues’ above, the clause 4.6 variation of the minimum subdivision lot size is acceptable and warrants support on its merits. As such, it is recommended that Development Application No. SF10948 be approved in accordance with the draft notice of determination at Attachment 1 to this Report.
