AG Kellyville Pty Ltd v The Hills Shire Council

[2020] NSWLEC 1205

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	AG Kellyville Pty Ltd v The Hills Shire Council [2020] NSWLEC 1205
Hearing dates:	27 March 2020
Date of orders:	06 May 2020
Decision date:	06 May 2020
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court Orders: (1) The appeal is upheld. (2) Modification Application No. 1666/2016/HB/D to modify the approved development for two residential flat buildings at Lot 11 Nightcap Road, North Kellyville by adding access and a terrace to the rooftop level of Building and two units to the rooftop level of Building B and other changes, is approved, subject to the conditions of consent at Annexure A. (3) The exhibits, other than exhibits 1 and A, are returned.
Catchwords:	MODIFICATION APPLICATION – whether the modified development is substantially the same pursuant to s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979 as the original development for which development consent was granted – whether the number of additional dwellings proposed is excessive
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Cases Cited:	Arrage v Inner West Council [2019] NSWLEC 85 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289
Texts Cited:	Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March, 2020) North Kellyville Precinct Development Control Plan 2008 North Kellyville Precinct Development Control Plan 2018
Category:	Principal judgment
Parties:	AG Kellyville Pty Ltd (Applicant) The Hills Shire Council (Respondent)
Representation:	Counsel: T Robertson SC (Applicant) A Seton (Solicitor) (Respondent)   Solicitors: Blackstone Waterhouse Lawyers (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2019/265665
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application 1666/2016/HB/D (the proposal) to modify Development Consent No. 1666/2016/HB (as modified) granted by the Respondent on 22 August 2017 for the construction of 2 x 3 storey residential flat buildings (RFBs) at Lot 11 Nightcap Road, North Kellyville (the site) by The Hills Shire Council (the Council). The proposal is summarised below at [15].

2. The appeal was subject to conciliation on 9 December 2019, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. The parties agreed to the hearing being conducted over the telephone following the Court’s “COVID-19 Pandemic Arrangements Policy” announced by the Court on 22 March 2020 and published on the Court’s website on 24 March 2020. The parties agreed to the applicant filing an Expert Report (Ex B) containing photographs and maps of the locality. I advised the parties during the hearing over the telephone that I have been to Nightcap Road, North Kellyville recently for the purpose of a s 34 conciliation conference in relation to another matter. The parties each filed written submissions prior to the hearing over the telephone.

4. Leave was unopposed and granted by the Court at the commencement of the hearing for the applicant to amend the application by relying on an amended proposal (Ex A), which reflected amendments to the proposal agreed to by planning and urban design experts in their joint report (Ex 4).

Issues

5. Following the amendments made to the proposal, the Council pressed the following contentions:

• Contention 1: The modification application must be refused because the development as proposed to be modified is not substantially the same development as the development for which the consent was original granted and before that consent as originally granted was modified, as required by s 4.55(2) of the EPA Act.

• Contention 5: The modification application should be refused because the number of additional dwellings proposed is excessive and inconsistent with the density objectives in cl 4.1B of the Precinct Plan. Furthermore, the development as proposed to be modified will exceed the maximum density permitted under the proposed amendments to SEPP Growth Centres and the North Kellyville Precinct Development Control Plan 2018 (DCP 2018).

The site and its context

6. The site is on the south-western corner of Nightcap Street and Sundown Road, to the north of Withers Road, North Kellyville. The site shares its southern boundary with the existing childcare centre on the corner of Withers Road and Sundown Road.

7. The site has a primary frontage of 89.2m to Nightcap Street to the north and a secondary frontage of 35.74m to Sundown Road to the east. The total site area is 3,393sqm. There is a drainage easement adjacent to the site’s western boundary. The site slopes from the south-eastern corner, RL 67.46 to the north-western corner RL 62.33 (AHD).

Planning framework

8. Section 4.55(2)(a) of the EPA Act is in the following terms:

(2) Other modifications

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)

9. The site is situated within the North Kellyville Precinct of the North West Growth Centre pursuant to the provisions of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP Growth Centres).

10. The North Kellyville Precinct Development Control Plan 2008 (the Precinct Plan) is at Appendix 2 of SEPP Growth Centres. The Precinct Plan applies to the site at cl 1.3. The aims of the Plan are at cl 1.2 of Appendix 2. The site is zoned R1 General Residential under the Plan and the objectives of the R1 zone are:

“• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To encourage medium density housing in locations of high amenity adjoining open space and accessible transport corridors.

• To support the well being of the community, including educational, recreational, community, religious and other activities and, where appropriate, neighbourhood shops if there will be no adverse effect on the amenity of proposed or existing nearby residential development.

• To allow for low intensity tourist and visitor accommodation that does not interfere with residential amenity.

• To provide for a variety of recreational uses within open space areas.”

11. The site adjoins land zoned R2 Low Density Residential.

12. Clause 4.1B of Appendix 2 is in the following terms:

“4.1B Residential density

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

(a) to establish minimum density requirements for residential development within the North Kellyville Precinct,

(b) to ensure that residential development makes efficient use of land and infrastructure and contributes to the availability of new housing,

(c) to ensure that the scale of residential development is compatible with the character of the precinct and adjoining land.

(2) This clause applies to residential development of the kind referred to in clause 4.1AB or 4.1AC that—

(a) is carried out on land to which this Precinct Plan applies that is shown on the Residential Density Map, and

(b) requires development consent, and

(c) is carried out after the commencement of State Environmental Planning Policy (Sydney Region Growth Centres) Amendment (Housing Diversity) 2014.

(3) The density of any residential development to which this clause applies is not to be less than the density shown on the Residential Density Map in relation to that land.

(4) In this clause—

density means the net developable area in hectares of the land on which the development is situated divided by the number of dwellings proposed to be located on that land.

net developable area means the land occupied by the development, including internal streets plus half the width of any adjoining access roads that provide vehicular access, but excluding land that is not zoned for residential purposes.”

13. The DCP 2018 (Ex 3, tab 34) applies to the site.

Expert evidence

14. The applicant relied on the expert evidence of Rohan Dickson (urban design) and Clare Brown (planning). The Council relied on the expert evidence of Peter Smith (urban design) and Aleks Milinkovic (planning). The four experts prepared a joint report (Ex 4) and were not required to give oral evidence.

The proposal is substantially the same development as the development for which consent was originally granted

15. The changes, both quantitative and qualitative, between the originally approved development (Ex 2, tab 2) and the proposed modified development can be summarised as:

• An increase of 2 units, from 39 to 41.

• An increase in communal open space of 74.72sqm in the form of the roof terrace on Building A.

• A decrease of 1.3% in deep soil planting.

• Lifts have been added to both RFBs.

• An increase in the height of both RFBs to accommodate a mansard roof form for access to a roof terrace on Building A and to add two additional units on Building B.

• An increase in the height of floor levels. The façade parapets on Building A have been increased in height from RL 71.85 to RL 72.45 and RL 72.65 to RL 73.25. The façade parapets on Building B have been increased in height from RL 73.85 to RL 75.4 and RL 74.85 to R 76.05.

• The maximum height of Building A is the lift overrun RL 76.7. The maximum height of Building B is the eastern roof ridge RL 78.4. The forms of the mansard roofs to each RFB are predominately above the 9m height of buildings development standard.

• An increase of 5 car parking spaces from 49 to 54 and a net increase in traffic generation of 1 vehicle per hour during peak periods. The northern setback of the basement level has been reduced and the layout of the basement on the northern side has been amended. The configuration of stairs has been changed. The circulation of traffic within the basement has been changed.

16. The test to be applied is the statutory provision of s 4.55(2)(a) of the EPA Act (Arrage v Inner West Council [2019] NSWLEC 85 at [18] and at [24]-[25]). Having compared the features and components of the originally approved and modified developments, I am satisfied that the two developments are substantially the same for the following reasons:

• The modified development adds a mansard roof form to Building B behind the approved façade parapet when compared to the originally approved development which had a stepped flat roof behind the façade parapet. The addition of the mansard roof form to Building B does not in of itself make the modified development not substantially the same as the originally approved development because the mansard roof addition occupies only a portion of the existing roof and the form of the mansard roof is recessive;

• Although the building height has been increased, the overall form of the RFBs in the modified development is substantially the same as the originally approved development because the additional bulk of the third level is accommodated in a recessive mansard roof form on Building B and the overall form of the two RFBs remains much the same as the originally approved development;

• The modified development adds a roof terrace to Building A behind the façade parapet. This addition is minor and the form of the originally approved development of Building A remains intact;

• Exceedance of a development standard by a modified development does not per se result in a development that is not substantially the same as the originally approved development;

• The raising of the floor levels and consequent raising of the façade parapet levels on both RFBs is numerically insignificant and imperceptible when comparing the visual bulk of the building envelopes of the modified development and the originally approved development;

• The spatial layouts of each of the basement, ground floor, first floor and second floors of the modified development is essentially the same as the originally approved development;

• The footprint and configuration of the modified development is essentially the same as the originally approved development as the modified development reads as a three storey development as was originally approved, with a pitched roof form behind the parapet;

• The changes to the basement level and increase in parking spaces are minor when compared to the originally approved development; and

• The experts agreed that the modified development does not increase the overshadowing of the adjoining childcare centre’s outdoor play area on the winter solstice when compared to the approved development (Ex 4, par 2.10). The lack of any additional environmental impact of the modified development is a relevant consideration (Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [62] and Arrage v Inner West Council [2019] NSWLEC 85 at [28]) although I assume the experts have compared the proposal to the currently approved development as modified and not necessarily to the originally approved development. Nevertheless, as the proposal is for roof additions to both RFBs, the absence of additional overshadowing of the childcare centre’s outdoor play area is particularly relevant to my consideration.

Density

17. The applicant submitted that the DCP 2018 is essentially the 2008 DCP with some minor amendments. DCP 2018 does not reflect the Precinct Plan provisions because DCP 2018 refers to “density target bands” at section 2.4 and the Precinct Plan only contains a minimum density requirement at cl 4.1B. The applicant submitted that to the extent that the residential density provisions in DCP 2018 are inconsistent with cl 4.1B, those provisions have no effect, pursuant to s 3.43(5)(b) of the EPA Act.

18. The Council submitted that there is no inconsistency between the Precinct Plan and DCP 2018. DCP 2018 dictates the form and character of development for the R1 zone with a minimum target of 12.5 dwellings/ha.

19. The Precinct Plan does not include a floor space ratio (FSR) development standard for the site (North West Growth Centre Floor Space Ratio Map - Sheet FSR_012 of SEPP Growth Centres).

20. An amending SEPP, that included the introduction of density bands for the SEPP Growth Centres and proposed to set a minimum of 15 dwellings/ha and a maximum of 35 dwellings/ha for an area including the site, was exhibited during 2017. The parties agreed that the Draft amendment to SEPP Growth Centres has effectively been abandoned and that the amendments to the SEPP are neither certain nor imminent (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 at [5]).

21. According to Mr Milinkovic, the approved development on the site represents a density of 114.9 dwellings per hectare (ha) and the proposal increases the density to 120.84/ha. Mr Milinkovic noted that the approved development is well above the proposed maximum density band under the Draft amending SEPP.

22. Mr Milinkovic’s calculation is based on the site’s area of 3393sqm. “Net developable area” is defined at cl 2.4 of the Precinct Plan as follows:

“Net developable area means the land occupied by the development, including internal streets plus half the width of any adjoining access roads that provide vehicular access, but excluding land that is not zoned for residential purposes.”

23. “Net Residential Density” referred to in section 2.4 of DCP 2018 includes the following explanation:

“Net Residential Density means the net developable area in hectares of the land to which the development is situated divided by the number of dwellings proposed to be located on that land. Net Developable Area means the land occupied by the development, including internal streets plus half the width of any adjoining access roads that provide vehicular access, but excluding land that is not rezoned for residential purposes…

Net Residential Density is an averaging statistic. The average dwelling density should be achieved across the identified area with a diversity of lot and housing types. However, this does not mean that all streets offer the same housing and lot mix. Built form intensity should vary across a neighbourhood in response to the place: more intense around centres or fronting parks, less intense in quieter back streets. In lower density areas, there will be a higher proportion of larger lots and suburban streetscapes but there may also be some streets with an urban character. In higher density areas, urban streets with more attached housing forms will be more common but there will also be some suburban streetscapes.”

24. Both the Net Developable Area and Net Residential Density are based on, according to the definitions, land occupied by the development as well as internal streets and part of the access roads. In other words, a Net Residential Density is a broad brush strategic planning tool for determining yields for a particular residential zone. Net Residential Density is an “averaging statistic”. Not only does Mr Milinkovic’s calculation yield an inflated rate because it is confined to the site area; the residential density calculation is not helpful or applicable when considering an individual site for a residential flat building development because it depends on what proportion of the forecasted density is proposed to be accommodated on that individual site. This is evident in the text quoted above, “this does not mean that all streets offer the same housing and lot mix” and “Built form intensity should vary across a neighbourhood in response to the place”. I also note that the only Net Residential Density rate in Table 5 of section 2.4 which includes residential flat buildings is 40+ dwellings/ha, which suggests that the 12.5 dwellings/ha minimum density target for the R1 zone in Table 4 is a conservative minimum for the total yield of a wide range of residential development permissible in the R1 zone.

25. I do not accept the applicant’s submission that there is necessarily an inconsistency between section 2.4 of DCP 2018 and cl 4.1B of the Precinct Plan; instead I am of the view that this section of DCP 2018 cannot be usefully applied to an individual development site for a residential flat building because it is a strategic planning tool used at a broad scale to make predictions about yields and infrastructure. The density of individual developments is controlled by development standards for height and FSR in a Local Environment Plan (or Precinct Plan in this case) and corresponding building envelope controls in a development control plan. Development standards are presumably informed by broad brush strategic planning tools such as residential density targets.

26. I accept Mr Milinkovic’s evidence that an increase of 2 units on this site is unlikely to result in unacceptable demands on existing, or planned, local services and infrastructure in the area. According to Mr Milinkovic, the proposal is inconsistent with objective 1(b) of cl 4.1B because the proposed two units will contribute to the cumulative effect of unacceptable and unplanned increase in density for the locality in general. I do not accept that objective 1(b), “to ensure that residential development makes efficient use of land and infrastructure and contributes to the availability of new housing,” is contravened by the proposal.

24. I am satisfied that the proposal is consistent with the objectives at cl 4.1B of the Precinct Plan because I am satisfied that the scale of the proposal is compatible with the character of the precinct and adjoining land and I accept Mr Smith’s opinion that the proposal provides a superior architectural response to the original modification proposal.

Orders

28. The orders of the Court are:

1. The appeal is upheld.

2. Modification Application No. 1666/2016/HB/D to modify the approved development for two residential flat buildings at Lot 11 Nightcap Road, North Kellyville by adding access and a terrace to the rooftop level of Building A and two units to the rooftop level of Building B and other changes, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than exhibits 1 and A, are returned.

__________________

Susan O’Neill

Commissioner of the Court

Annexure A (266 KB)

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Amendments

14 May 2020 - Pursuant to the Uniform Civil Procedure Rules 2005, r 36.17, the slip rule, by the consent of the parties, amend the Court’s orders made on 6 May 2020, to replace the words of the heading listed at Annexure A from “AG Kellyville Pty Ltd v Hawkesbury City Council”, so that the heading of Annexure A now reads “AG Kellyville Pty Ltd v The Hills Shire Council”.

Decision last updated: 14 May 2020