Looking into the crystal ball – Parrot v Kiama Municipal Council

The judgment of Parrot v Kiama Municipal Council provides guidance with respect to development applications for subdivision, and when we may need to consider the impacts of future development on the land (like houses or other structures).

Facts and issues

The applicant proposed to:

  1. subdivide an allotment at Headland Drive, Gerroa into two lots (one of the lots was a battleaxe lot);
  2. to construct a detention basin and absorption trenches; and
  3. to construct an elevated driveway to serve the battleaxe lot.

Kiama Council had three main categories of issues including concerns with respect to:

  1. the unsatisfactory treatment of stormwater;
  2. unacceptable impact of the elevated driveway; and
  3. unacceptable impacts on surrounding properties, and in particular the impact a future dwelling might create.

The planning principle

The Court was particularly concerned with the environmental impacts of the future development on the land, that is, the future dwellings that would inevitably be built on the proposed residential lots. Specifically, the Court said the following:

When should a subdivision application include information on the buildings to be built on the resulting allotment(s)? It is normal practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them.

In this case the proposed battleaxe allotment is not small, though it is much smaller than its neighbours. It is environmentally sensitive because of its extreme steepness. It is in a location where the adjoining allotments all have rear yards and thus it breaks the established building line. Any future building on it will be closer to the Stafford Street properties than other houses are to their southern neighbours. The likelihood of adverse impact is high. This is not to say that an acceptable dwelling cannot be designed on the allotment, only that it would require a higher than usual level of design skill. The design of the future house (at least the outline design) is not a matter that is appropriately left till later.

For the above reasons the appeal is dismissed and the application refused.

What does it mean

When dealing with a proposed subdivision, it is important to consider whether the future development on the lots could be:

  1. constrained;
  2. environmentally sensitive; or
  3. could result in significant impacts on neighbours,

then it may be necessary to consider these matters at the development application stage for the subdivision.

Read more

Click here to access a copy of the judgment: Parrott v Kiama [2004] NSWLEC 77

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.