12-14 Hereford Street Pty Ltd v Council of the City of Botany Bay

[2016] NSWLEC 1166

Land and Environment Court

New South Wales

Medium Neutral Citation:

12-14 Hereford Street Pty Ltd v Council of the City of Botany Bay [2016] NSWLEC 1166

Hearing dates:

19-20 April 2016

Date of orders:

05 May 2016

Decision date:

05 May 2016

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is dismissed.
2. The development application (272/2014) for the construction of six dwellings, landscaping and subdivision at 12-14 Herford Street, Botany, is refused.
3. The exhibits, except Exhibit 4, are returned.

Catchwords:

DEVELOPMENT APPLICATION: breach of floor space ratio control, subdivision, streetscape character.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act
Botany Bay Local Environmental Plan 2013

Cases Cited:

Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1001

Category:

Principal judgment

Parties:

12-14 Hereford Street Pty Ltd (Applicant)

  Council of the City of Botany Bay (Respondent)

Representation:

Counsel:
Mr M Staunton, (Applicant)

 

Solicitors:
Mr M Sonter Lawyers (Applicant)

  Mr J Cole, HWL Ebsworth Lawyers (Respondent)

File Number(s):

10840 of 2015

JUDGMENT

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Council of the City of Botany Bay (council) of a development application (272/2014) for the construction of six dwellings, landscaping and subdivision at 12-14 Herford Street, Botany (the site).

2. The main issues that remain in dispute are whether the proposed subdivision and development are compatible with the existing and desired future character of the area and whether the breach of the floor space ratio (FSR) standard is acceptable.

Site and locality

3. The site is located on the eastern side of Herford Street. It comprises two lots being Lot 1 DP 131414 (12 Herford Street) and Lot 2 DP 956144 (14 Herford Street). The site is relatively flat and irregular in shape with a combined area of 1,729sqm and a frontage to Herford Street of 22.925m. 14 Herford Street has depth of about 108m and 12 Herford Street is about 52m deep. Each lot is developed with a single storey dwelling and outbuildings and has vegetation, including a large avocado tree located on 12 Herford Street.

4. To the north, 12 Herford Street adjoins a part one, part two storey dwelling (10 Herford Street) and 14 Herford Street adjoins Banksmeadow Public School. Both allotments adjoin the school at their rear eastern boundary.

5. To the south, 14 Herford Street adjoins a “battle-axe” development with four dwellings accessed off a driveway that runs along the common boundary (16-18A Herford Street). This adjoins another “battle-axe” development with three dwellings (20, 20A and 20B Herford Street) and a Department of Housing development (22 Herford Street). To the west, on the opposite side of Herford Street, are single storey dwellings.

6. Development in Herford Street is predominantly residential, single storey detached houses some with two storeys set back from the street. A pre-school is located on the corner of Wilson Street with medium density housing opposite.

Statutory framework

7. The site is zoned R2-Low Density Residential under Botany Bay Local Environmental Plan 2013 (LEP). A range of residential uses are permitted with consent within the zone including: Attached dwellings; Dwelling houses; Semi-detached dwellings.

8. Multi dwelling housing and Residential flat buildings are also permissible in the R2 zone but, under cl 6.11 of the LEP, they are only permitted for the adaptive reuse of non-residential land and buildings. This clause is not relevant to the site or any other property in the street.

9. Under clause 2.3(2), the consent authority must have regard to the objectives of the zone which relevantly include:

• To provide for the housing needs of the community within a low density residential environment.

10. Under cl 4.3 and the Height Map of the LEP, the maximum height of a building is 8.5m. Clause 4.4 and the Floor Space Ratio (FSR) Map specify maximum FSRs. However, the site is within “Area 3” on the FSR Map and therefore cl 4.4A applies which provides:

4.4A Exceptions to floor space ratio for residential accommodation

(1) The objectives of this clause are as follows:

(a) to ensure that the bulk and scale of development is compatible with the character of the locality,

(b) to promote good residential amenity.

(2) This clause applies to land identified as “Area 3” on the Floor Space Ratio Map.

(3) Despite clause 4.4 (2), the following provisions relate to floor space ratios on land to which this clause applies:

(a) the maximum floor space ratio for a dwelling house is not to exceed the floor space ratio applicable to the site area of the land on which the dwelling house is situated:

Site Area          Maximum Floor Space Ratio

<200 square metres      0.85:1

200–250 square metres   0.80:1

251–300 square metres   0.75:1

301–350 square metres   0.70:1

351–400 square metres   0.65:1

401–450 square metres   0.60:1

>450 square metres      0.55:1

(b) the maximum floor space ratio for multi dwelling housing is not to exceed 0.8:1,

(c) the maximum floor space ratio for a residential flat building is not to exceed 1:1,

(d) the maximum floor space ratio for all other development for the purpose of residential accommodation is 0.5:1.

11. The proposed semi-detached dwellings 1 and 3 exceed the 0.5:1 FSR specified for “other development” in cl 4.4A. The parties disagree on the extent of the non-compliance based on different interpretations of whether stairs are included in the definition of Gross floor area (GFA) but have accepted the GFA and FSR set out below. On this basis, Dwelling 1 would exceed the standard by 25.8% (29.3sqm) and Dwelling 3 by 31.25% (43.6sqm). The applicant has submitted a written request to vary the this standard under cl 4.6 of the LEP, which provides:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(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.

12. Clause 5.9 of the LEP would require development consent for the removal of the trees on the site, including the avocado tree.

13. Botany Bay Development Control Plan 2012 (DCP) is relevant. It includes General Provisions for Car parking (Part 3A), Subdivision (Part 3E), Tree Management (Part 3F), Stormwater management (Part 3G) and Landscaping and tree management (Part 3L).

14. Part 4 of the DCP provides specific provisions for residential development, including dwelling houses (Part 4A). It relevantly provides objectives and controls for Site analysis (Part 4A2.2), Local character (Part 4A.2.3), Streetscape presentation (Part 4A.2.4), Height (Part 4A.2.5), Floor space ratio (Part 4A.2.6), Site coverage (Part 4A.2.7), Building setbacks (Part 4A.2.8), Landscaped Area (Part 4A.2.9), Vehicle access (Part 4A.3.7 and Car parking (Part 4A.4.8).

15. A number of these provisions aim to ensure that the Desired Future Character (DFC) for the relevant Precinct is achieved.

16. The site is within the Botany Character Precinct (Part 8.4). The existing local character is relevantly described in Part 8.4.1 as:

Over the last decade the Botany Precinct has been in the process of transition with the conversion of industrial zoned land to residential zoned land. This process has resulted in the emergence of stylish and high quality medium density housing in the areas of Daphne Street, Banksia Street and William Street.

…….

The street network within the Precinct is a combination of regular and irregular grids with some large blocks with private internal access ways. As a result the permeability of the area is highly varied. A concentration of single and double storey villas and townhouses in the middle of the Botany Precinct is a notable departure from the traditional urban structure of residential development in the area.

……

Traditional detached housing occupies a large proportion of residential land, although more recent villas, townhouses and apartments (generally located on former industrial sites) provide a significant number of dwellings, particularly in the eastern area of the Precinct. Some shop top housing occurs in the traditional strip shopping centres of Botany and Banksmeadow. Low dwelling densities of up to 15 dwellings per hectare characterise the Precinct.

…..

17. The Desired future character for the precinct is set out in Part 8.4.2 of the DCP and relevantly includes:

Function and diversity

…..

Development should:

promote neighbourhood amenity and enhance pedestrian comfort;

encourage site layout and building styles and designs that promote commonality and a visual relationship with the surrounding built form and dwelling styles;

encourage dwelling styles that maintain and complement existing development patterns;

encourage a strong landscape and vegetation theme within both the public and private domain; and

….

Form, Massing, Scale and Streetscape.

….

Promote medium residential development in areas adjacent/adjoining existing medium density housing development with an FSR of 0.85:1 and 2 storeys with attic (a maximum height of 10 metres) unless the site area is over 2000m² which then permits a FSR of 1.5:1 and 2 to 6 storeys (a maximum height of 22 metres).

Maintain and enhance low density residential accommodation in the form of detached/attached dwellings with a maximum height of 2 storeys in the remainder of the Precinct.

Promote site access and parking facilities that do not dominate the streetscape.

Encourage new development or alterations and additions to existing development to complement the height and architectural style found in the immediate vicinity, particularly where there is an established character.

Maintain roof forms to reflect the characteristics of the prevailing designs within the street

Setbacks

Retain front setbacks which are consistent within a street and promote landscaping to soften the built form.

Retain side setbacks, where they are consistent within a street.

Landscaping

Encourage landscaping within the front and side setback to soften the built form particularly in high density terrace, unit and residential flat buildings.

Promote landscaping in rear private open space areas to provide privacy to adjoining properties.

…..

Subdivision

Retain and preserve the rectilinear grid pattern within the Precinct.

……

Traffic and access

Encourage new development to have a minimal impact on traffic flow and demand for on street parking spaces.

Encourage development to provide adequate on-site parking to assist in reducing traffic congestion on local road networks.

……

Background and the proposal

18. The development application was lodged on 14 November 2014. It proposed the demolition of the existing structures on the site, removal of vegetation, construction of eight new dwellings with landscaping and common driveway, together with the consolidation of the two existing allotments and subdivision into nine Torrens title allotments (Original Application).

19. The Original Application was advertised and notified. It was amended during the assessment process to reduce the number of dwellings to six and was renotified. The applicant filed an appeal against council’s deemed refusal of the application on 18 September 2015 and it was subsequently refused under delegated authority on 20 October 2015. A conciliation conference under s 34 of the Land and Environment Court Act was held on site on 17 December 2015. The parties did not reach agreement and the conference was terminated but they agreed to my hearing the appeal. The applicant was granted leave on 26 February 2016 to rely on further amended plans, which were renotified. Further amendments were subsequently made and I granted leave at the commencement of the hearing for the applicant to rely on these plans (Exhibit A).

20. The Exhibit A plans propose:

• demolition of the existing structures on the site

• removal of vegetation

• construction of four semi-detached and two detached dwellings and an access driveway.

• Landscaping

• Consolidation of the two existing allotments and subdivision into six Torrens title allotments. Proposed lots 2, 3, 4 and 5 would be burdened by a right of way (ROW) for the access driveway.

21. A summary of the development is set out below:

Dwelling 1	Dwelling 2	Dwelling 3	Dwelling 4	Dwelling 5	Dwelling 6
Site area (sqm)	227	352	279	355	301	231
GFA (sqm)	142.8	142.8	183.1	178.1	155.5	133.5
FSR	0.63	0.40	0.66	0.50	0.52	0.58
Building Height	Within 8.5m	Within 8.5m	Within 8.5m	Within 8.5m	Within 8.5m	Within 8.5m
Storey	2	2	2	2	2	2
Bedrooms	3 plus TV room and study/fourth bedroom	3 plus TV room and study/fourth bedroom	3 plus TV room	3 plus TV room	4	3
Car parking	1	1	2	2	1 plus one stacked space	2

Evidence

22. The Court visited the site and heard from objectors. The key concerns were that the proposal did not fit with the existing low density character of the area as the proposed subdivision does not comply with the minimum allotment size of 450sqm and consequently there would be too many dwellings on the site. They recognised that the amendments had made significant improvements to the proposal but maintained their concern that the number of dwellings results in unacceptable impacts, including removal of vegetation without adequate replacement; loss of privacy and visual bulk of the development. They were concerned about the increased traffic and demand for parking, in particular, the loss of on street parking spaces resulting from the provision of two additional cross overs.

23. The Court heard evidence from Mr A Betros, planner and Mr R Nettle, traffic engineer, for the applicant, and Mr S Kerr, planner, and Mr C McLaren, traffic engineer, for the council.

Character of the area and subdivision pattern

24. The key disagreement between the planners was whether the proposed subdivision and built form would be characteristic of the area. The experts agree that the DFC would generally reflect the existing character of the street. The existing subdivision pattern is not strictly that of a rectangular grid and that that there were different lot sizes and configurations in the street, which range in size from 209sqm to 2207sqm.

25. Mr Kerr considered that the prevailing subdivision pattern was primarily lots with east-west orientation, an average site area of about 350sqm. The predominant form of development is detached single storey dwellings with pitched rooves and landscaping at the front and rear.

26. The Existing Local Character statement in the DCP notes that “Low dwelling densities of up to 15 dwellings per hectare characterise the Precinct”, which equates to about lots of about 530sqm. The average lot size in the proposal is 288sqm, which includes the access driveway. Even if the existing pattern of only the adjoining lots at 16-18A and 20 Herford Street were considered, these have average allotment sizes of 475sqm and 727sqm respectively.

27. Mr Kerr referred to the objectives of Part 3E.2.2 of the DCP, which seek to ensure that proposed subdivision is consistent with the DFC and the existing or prevailing subdivision pattern and the controls for battle-axe subdivision require a minimum site area of 450sqm and width of 12m. In his opinion, the subdivision would not meet the numerical requirements or the objectives of the control. In particular, the resultant built form would not be consistent with existing or DFC and does not comply with a number of the controls for dwelling houses in Part 4A of the DCP. The proposal would be two storeys at the street with flat rooves, it would be visible along the “gun barrel” driveway and from adjoining properties with insufficient landscaping, including canopy trees to compensate for the removal of the avocado, the spatial separation between the proposed dwellings would be insufficient to break up the built form and the width of the site at the rear result in built form that was on or close to the boundary. In his opinion, the proposal would have unacceptable visual bulk that was not consistent with the existing character and DFC.

28. Mr Betros, considered the Character Statement refers to more typical allotments and that the subdivision in the street is varied with no predominant pattern. In his opinion, it is not appropriate to compare the site with smaller allotments and that it had more similarity with the original size of the adjoining larger lots at 16-18A, 20 and 22 Herford Street, which have similar frontages and depths. The proposed subdivision is consistent with the later subdivision of 16-18 and 20 Hereford into “battle-axe” allotments. He questioned the relevance of the controls for battle-axe subdivision in Part 3E.2.2 as the controls require one allotment facing the street and only one allotment to be serviced by a driveway access corridor. Nevertheless, he considered that the proposal would achieve the objectives despite any non-compliance with the numerical controls. In his opinion, the subdivision and built form would be consistent with the existing and DFC as the built form would be broken into four buildings which were lower in height and of similar or less bulk to other existing dwellings. The DCP supports “innovative” design and the combination of flat and pitched rooves were an appropriate response to the streetscape. The proposal included adequate planting, including along the driveway, to provide an appropriate landscape setting and there were no amenity impacts such as loss of privacy or solar access.

Findings

29. The LEP does not include a minimum allotment standard. However, Part 3E of the DCP provides objectives and controls for Residential Torrens Title Subdivision which include:

Objectives

O1 To ensure that the proposed subdivision is consistent with the Desired Future Character of the area;

O2 To ensure the proposed subdivision is consistent the existing or prevailing subdivision pattern;

O3 To ensure the site features and constraints are considered;

……

O6 To facilitate the orderly development of land without adversely impacting on the amenity of existing developments within the locality; and

O7 To ensure that future development can be accommodated on the land subject to controls with the DCP (ie. site frontage widths and setbacks).

Controls

General

C1 Development Applications shall demonstrate that the proposed subdivision or amalgamation is consistent with the Desired Future Character of the area (refer to relevant sections in Part 8 - Character Precincts, Part 9 - Key Sites Part 5 - Business Centres and Part 6 – Employment Zones).

C2 Proposed subdivision or amalgamation must have characteristics similar to the prevailing subdivision pattern of lots fronting the same street, in terms of area, dimensions, shape and orientation.

Note: Council generally considers the ‘prevailing subdivision pattern’ to be the typical characteristic of up to ten allotments on either side of the subject site and corresponding number of allotments directly opposite the subject site. Properties located in the surrounding streets do not usually form part of the streetscape character and are therefore not taken into consideration when determining the prevailing subdivision pattern.

……

C5 Proposed lots must be of a size and have dimensions to enable the siting and construction of a dwelling and ancillary structures that:

(i) Acknowledge site constraints;

(ii) Address the street;

(iii) Minimise impacts on adjoining properties including access to sunlight, daylight, privacy and views;

(iv) Provide usable private open space;

(v) Provide vehicle access.

(vi) Protect existing vegetation;

(vii) Mitigate potential flood affectation and stormwater management requirements;

……..

Battle-axe Subdivision

C10 Battle-axe subdivision patterns will not be permitted within residential zones unless it can be demonstrated that it is part of the prevailing subdivision pattern.

C11 Battle-axe subdivision patterns must result in one (1) or more allotments fronting the street and only one (1) allotment being serviced by a driveway access corridor.

C12 Any proposed battle-axe allotment without a frontage to the street must have a minimum site area of 450m² and width of 12 metres.

Note: Battle-axe lots which are serviced via an access corridor are considered to be allotments without a frontage to the street. Where the access corridor is less than 8m wide, it shall not be included in the calculation of the minimum allotment area for either lot.

C13 The width of an access corridor to a battle-axe lot shall be at least:

a. 4.5 metres for lengths less than 30 metres; and

b. 5 metres for lengths exceeding 30 metres.

C14 Access corridors are to be located to ensure existing street trees are retained.

30. Although the proposed subdivision provides more than one allotment off an access handle, it is best described as a “battle-axe” and the experts agree that it does not comply with the numerical controls. There are a range of lot sizes in the street and no prevailing pattern. There are other battle-axe subdivisions on the adjoining sites at 16-18A and 20 Herford Street, which are part of the existing character and it is appropriate for the subdivision on the site to respond to the prevailing subdivision pattern on these lots due to the similarities in the dimensions of the original lots. However, the average size of the proposed lots of 288sqm is well below the average size of the adjoining lots of 475sqm and 727sqm.

31. The proposed lots 3-6 range in size from 231sqm to 355 sqm and are well below the minimum allotment size of 450sqm in the DCP, particularly as access corridors less than 8m are not included in the allotment area. Consequently, the proposal does not meet objectives O1 and O2 of Part 3E.2.2 to be consistent with the DFC and the existing or prevailing subdivision pattern.

32. There are a number of trees on the site which were all to be removed. The applicant has agreed to retain the Lilli Pilli trees adjoining the boundary to 10 Herford Street however, the large Pepper tree and Avocado tree are to be removed. The Pepper tree is in poor condition and its removal is accepted but the Avocado tree is in good health and condition. While it is not a “Significant” tree it provides “High Visual Amenity”. It is a site constraint that has not been adequately considered in the proposal and may be able to be retained (Part 3F.4). While replacement trees are proposed the open space in the proposed allotments may not be of sufficient size to provide large replacement canopy trees. The proposal therefore does not satisfy objective O3 of Part 3E.2.2 of the DCP.

33. The proposed subdivision also does not meet objective O6 and O7 of Part 3E.2.2 of the DCP as it will result in a built form which has impacts of visual bulk when viewed from the street along the driveway and from the adjoining properties at 8 and 10 Herford Street. Existing development in the street is predominantly single storey with pitched rooves and second storeys are set back. The proposal has sought to respond to this with pitched roof elements at the end, behind an entry portico. The experts agreed that the entry could be reduced in height to better reveal the pitched roof and improve the relationship to 10 Herford Street. With these changes, I accept that Dwellings 1 and 2, while being two storeys with a flat roof element would achieve a degree of consistency when viewed from the street. However, the proposal provides three cross overs to the street for access to Dwellings 1 and 2 and to the access driveway. This impacts on the number of on-street parking spaces and the amount of landscaping and is a negative feature of the development. If access to Dwelling 2 were off the access driveway it would improve this arrangement.

34. The combined width of the proposed driveway and the driveway to 16-18A Herford Street result in the length of both these developments being highly visible from the street. Even with further amendments there would be limited landscaping along the proposed access driveway to soften the development. Dwellings 2, 3, 4 and 5 would be visible along the driveway and due to the limited space between the built form, the development would appear as medium density rather than as a low density development sought by the planning controls. Similarly, the development would appear from 10 and 8 Herford Street and the school as a medium density development. The proposal is therefore not consistent with the DFC to maintain and enhance low density residential accommodation in parts of the Precinct, to encourage a strong landscape and vegetation theme and provide landscaping within the side setback to soften the built form.

35. The width of the rear of the site is 9.54m (14 Herford Street). This results in limited space for the driveway and significant parts of Dwellings 5 and 6 being built on or close to the school boundary with limited opportunity for landscaping. The car parking for Dwelling 5 is stacked arrangement and relies on complex manoeuvring for access. The provision of two dwellings in this part of the site is “tight” and not characteristic of the precinct.

36. Furthermore, Part 4A.4.7 of the DCP includes controls which do not permit internal driveways that are characterised by large expanses of concrete (C5) and require the alignment of driveways, where possible, to avoid “gun barrels”. As the development includes subdivision of the site it is clearly possible to avoid a “gun barrel” driveway with a different arrangement of the lots and greater setback from the boundary to enable “meandering” of the driveway and landscaping.

37. The proposal generally meets the requirements for site coverage and landscaped area, although it is unclear why the garages have not been include in the calculation for site coverage. However, allotments which better complied with the minimum requirements for “battle-axe” allotments would require less percentage of site coverage and greater percentage of landscaped area and consequently result in a different arrangement of built form to open space that would be more characteristic of a low density environment.

Floor space ratio

38. Dwellings 1 and 3 do not comply with the maximum FSR for semi-detached dwelling of 0.5:1 in cl 4.4A of the LEP and the overall FSR of the site is 0.52:1.

39. Mr Betros prepared a written request required under cl 4.6(3) of the LEP seeking to justify the contravention of the FSR standard (the Request).

40. The Request provides that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) for the following reasons:

• the proposal complies with the objectives of the standard and the zone (discussed below),

• a greater FSR would be permissible for a dwelling house on the proposed allotments and would result in greater bulk and scale than the proposed semi-detached dwellings,

• semi-detached dwellings have been approved with non-complying FSRs on other sites in the area,

• the proposal achieves a desirable streetscape outcome and has no adverse environmental impacts,

• the fragmented form of development and unusual shape and relationship with adjoining properties contribute to particular site circumstances which are unique to the site,

• the combined driveways achieves greater separation with the development to the south,

• the depth and width of the site allows for greater separation between dwellings and breaks up the perception of visual bulk.

41. The Request states that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)) for similar reasons to those outlined above, in particular that the additional FSR would not result in any greater environmental impacts than a complying development.

42. Mr Kerr did not support the Request. He considered that the depth of the site, narrow width at the rear and the Avocado tree are environmental constraints which do not justify varying the FSR standard. The variation is indicative of the overdevelopment of the site and results in uncharacteristically bulky buildings with insufficient landscaping to provide a buffer to the southern boundary or to soften the development.

43. For the reasons discussed above, Mr Betros and Mr Kerr held different opinions on whether the proposal would be consistent with the objectives of the R2 zone and the FSR standard in the LEP.

44. In summary, Mr Betros considered that the height, bulk and scale, setbacks and landscaping were compatible with the low density character of the locality and would not result in any unacceptable amenity impacts. Whereas, Mr Kerr considered the proposal to be consistent in character with a medium density development and due to its bulk and scale, minimal landscaping and separation between dwellings would result in impacts of visual bulk.

Findings

45. In Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1001, Brown C outlines the following assessment framework for a variation under cl 4.6:

39   Clause 4.6 of LEP 2012 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), the second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the height standard (cl 4.6(4)(a)(ii)), the third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) and the fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

…..

41   A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

46. The experts held different opinions as to whether the proposal would be consistent with the objective of the R2 zone “To provide for the housing needs of the community within a low density residential environment”.

47. The experts also held different opinions on whether the proposal will be consistent with the objectives of the FSR standard (cl 4.6(4)(a)(ii)) The objectives of cl 4.4A are:

(a) to ensure that the bulk and scale of development is compatible with the character of the locality,

(b) to promote good residential amenity.

48. The planning controls establish the likely future context for the Precinct. They recognise that traditional detached housing occupies a large proportion of residential land with more recent villas, townhouses and apartments generally located on former industrial sites. This diversity is reflected in the different zonings, height and FSR controls within the Precinct such as land opposite the northern end of Herford Street which is R3 – Medium Density Residential permits a range of residential uses, including Multi dwelling housing and Residential flat buildings with greater FSR and height than that permissible on the site.

49. The DFC for the Precinct recognises the different character of different parts of the Precinct and the character that is sought to be maintained in Herford Street is a low density environment. As discussed above, the subdivision, resultant built form and spatial separation result in a density of development which would appear as medium density and would not be consistent with the objective of the R2 zone or Objective (a) of cl 4.4A of the LEP.

50. While it is reasonable, given the size of the site, to expect that it will be developed with a form of “battle-axe” development, it is not reasonable to expect that 10 and 8 Herford Street would have a 24 m long built form (Dwellings 3 and 4) adjoining their rear open space area. The built form has been setback 5.6m, the upper level is articulated with further setbacks and privacy impacts have been addressed with screening, however, the DCP anticipates that this “battle-axe’ form of development would be on a larger allotment size and consequently, even if the built form remained the same, there would be greater opportunity for increased spatial separation between and around the built form, with greater opportunity for landscaping screening. The proposal will result in impacts of visual bulk beyond what is anticipated by the planning control and is not consistent with Objective (b) of cl 4.4A of the LEP.

51. The experts held different opinion about whether the Request adequately addresses the matters required to be demonstrated in cl 4.6(3)(a) and (b).

52. The FSR of the dwellings is a direct result of the proposed subdivision, larger allotment would enable FSR compliance to be achieved. Alternatively, the proposed dwellings are large, with effectively four bedrooms and a TV room. A reduction in the size of the dwellings could easily be achieved to ensure compliance with the FSR control. There are no circumstances particular to this site or this development that demonstrate that compliance with the standard is unreasonable or unnecessary or that there are sufficient environmental planning grounds to justify contravening the development standard. I am therefore not satisfied, as required under cl 4.6(4)(a), that the Request has adequately addressed the matters required to be demonstrated under cl 4.6(3).

53. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application which does not comply with the FSR control in cl 4.4A of the LEP and the application must fail.

54. Accordingly, it is not necessary for me to discuss the other matters in dispute between the parties.

Orders

1. The appeal is dismissed.

2. The development application (272/2014) for the construction of six dwellings, landscaping and subdivision at 12-14 Herford Street, Botany, is refused.

3. The exhibits, except Exhibit 4, are returned.

Annelise Tuor

Commissioner of the Court

Decision last updated: 05 May 2016