Agvali Holdings Pty Limited v Leichhardt Council

[2002] NSWLEC 211

Land and Environment Court

of New South Wales

CITATION:	Agvali Holdings Pty Limited v Leichhardt Council [2002] NSWLEC 211
PARTIES:	APPLICANT: Agvali Holdings Pty Limited RESPONDENT: Leichhardt Council
FILE NUMBER(S):	10333 of 2001
CORAM:	Bignold J
KEY ISSUES:	Development Application :- SEPP No 1 objection to maximum floor space ratio prescribed by LEP
LEGISLATION CITED:	State Environmental Planning Policy No 1-Development Standards
CASES CITED:
DATES OF HEARING:	07/11/02
DATE OF JUDGMENT:	11/18/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr I Hemmings, Barrister SOLICITORS J Vosnakis and Associates REPONDENT: Mr G Green, Solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 10333 of 2001

Coram : Bignold J

18 November 2002

AGVALI HOLDINGS PTY LIMITED

Applicant

v

LEICHHARDT COUNCIL

Respondent

JUDGMENT

Bignold J:

A.

INTRODUCTION

1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 against the determination of the Council refusing development consent to an application for a residential development involving alterations and additions to, and the conversion of, an existing motel on land known as Nos 23-27 Arundel Street, Glebe (the development site) so as to create 20 apartments and seven two storey townhouses—the latter being situate at the rear of the development site with frontage to Catherine Street, Glebe.

2. Although the Council’s determination cited some eight grounds for refusal in its filed Amended Statement of Issues, the Council raised some 43 separate issues—an incredible escalation of issues and complexity by any standard!

3. However, fortunately on the hearing of the appeal, the focus of attention was properly confined to just a three cardinal issues, namely—

(i) the non-compliance of the proposed development with the statutory maximum floor space ratio and minimum landscaped area requirements imposed by cl 19(2) of the Leichhardt Local Environmental Plan 2000 (the LEP);

(ii) the design features and architectural character of the proposal situate within the relevant Conservation Zone created by the LEP; and

(iii) the amenity considerations raised by the proposal—both internal and external (especially for the two adjoining residential developments situate on the eastern boundary on the Arundel and Catherine Street frontages).

4. Ultimately, I have concluded that the very significant non-compliance of the proposal with the statutory maximum floor space ratio prescribed by the LEP and the physical manifestations of the proposal’s non-compliance with that standard, render the proposed development an unacceptable form of development for the development site and for that reason development consent must be refused. In so concluding, I have not been persuaded by the Applicant’s objection pursuant to State Environmental Planning Policy No 1—Development Standards (SEPP No 1) that compliance with the statutory maximum floor space ratio is either unreasonable or unnecessary in the circumstances of this case. Accordingly, on this fundamental ground, the proposed development is not legally capable of being approved, and hence the appeal must be dismissed.

5. I should interpose at this point the fact that the present appeal has been mutually conducted upon the basis that the Applicant is not asserting or relying upon any “existing use” entitlement in respect of the existing motel development on the development site. Without the Applicant abandoning any such “existing use” rights, the parties have been content to conduct the present proceedings on the assumption that development consent can only be granted to the proposal if the Court were to uphold the Applicant’s SEPP No 1 objection in respect of the maximum floor space ratio prescribed by the LEP. In this respect, the parties accept that cl 19(2) of the LEP relevantly imposes a “development standard” in respect of the floor space ratio and “landscaped area” required in respect of development of the development site which is amenable to the SEPP No 1 objection process. Ultimately, at the end of the hearing, the Applicant was able to satisfy the Court that its amended proposal could comply with the “landscaped area” requirements of cl 19(2) and that its SEPP No 1 objection in respect of that standard was no longer necessary.

6. Since success of the Applicant’s appeal is wholly dependent upon its SEPP No 1 objection in respect of the floor space ratio standard prescribed by the LEP being upheld, I shall immediately state my reasons for concluding why that objection has not been sustained on the hearing of the appeal.

B.THE SEPP NO 1 OBJECTION TO THE PRESCRIBED MAXIMUM FLOOR SPACE RATIO IMPOSED BY CL 19(2) OF THE LEP

7. Clause 19(1) and (2) of the LEP provide as follows:

(1) Floor space and landscaped area controls

In this clause:

Density area means land shown as a density area by heavy black edging on the density map.

(2) Except where the development is carried out in accordance with clause 23 (1), consent must not be granted to the carrying out of residential development on land within a density area if it will result in the floor space ratio exceeding the ratio shown for the density area in the following table:

Density Area	Maximum Floor Space Ratio
Leichhardt	0.5:1
Annandale	0.6:1
Balmain	0.7:1
Glebe	0.7:1

8. The parties and their respective experts agree that the objective of the floor space ratio standard is as stated in cl 17(c) of the LEP which provides as follows:

The objectives of the Plan in relation to housing are as follows:

(c) to provide development standards to ensure that the density and landscaped areas of new housing reflect the existing residential development of the locality. New housing should complement and be compatible with the style, orientation and pattern of surrounding buildings, works and landscaped areas, and

9. The Applicant’s SEPP No 1 objection is contained as Appendix A1 to the report of its Planning Consultant Mr Rodney Jensen (Exhibit 1). It is in the following terms:

This objection has been prepared on the basis that the development proposal referred to is a conforming use without prejudice to existing use rights, evidence of which is provided in Appendix A3.

This objection in support of proposed development of a residential units at 25 Arundel Street Glebe in the Municipality of Leichhardt, and has been prepared pursuant to State Environmental Planning Policy No 1 of the Environmental Planning and Assessment Act 1979. This objection has been prepared without prejudice to our understanding that the existing premises enjoy existing use rights and as such SEPP1 would not be required for a proposal deviating from development standards applicable to normal residential development.

The object seeks relief from the following requirement of Leichhardt Local Environmental Plan 2000, hereafter referred to as the LEP.

Clause 19 (2) of the LEP sets out maximum permissible floor space ratios for different sections of the Municipality. The maximum applicable to the Glebe locality which embodies the subject site is shown in the table as 0.7:1. The floor space ratio as stated by the architect in the statement of environmental effects based on CADD measurements is 1.33:1. The development proposal is therefore in breach of the standard for floor space ratio.

Relevant objectives are contained in clause 17 (c) of the LEP which states:

The objectives of the Plan in relation to housing are as follows:

…(c) to provide development standards to ensure that the density and landscaped areas of new housing reflect the existing residential development of the locality. New housing should complement and be compatible with the style, orientation and pattern of surrounding building, works and landscaped areas…

Strict adherence to these standards is considered unreasonable/unnecessary for the following reasons:

(1) The objectives of the standard are met. In our opinion, the proposal reflects the scale and bulk of existing adjacent development in Arundel Street.

Similarly, the development while located in a conservation area is considered to be in appropriate contemporary style adaptive re-use of an existing motel, greatly contributing to the overall quality of the immediate locality, and replacing an unsightly existing commercial use.

(2) The floor space ratio of many properties in the surrounding locality exceeds 0.7:1. In our view the 0.7:1 standard as applied in the immediate vicinity of the subject site is therefore in contradiction with the objective of the Plan (…new housing to reflect the existing residential development of the locality)…

(3) Floor space ratio control is an inappropriate way of regulating housing density given that the DCP also contains a variety of design standards regulating matters such as:

building form and envelope;
car parking
elevation and materials;

The concurrence of the Director of the Department of Urban Affairs and Planning may be assumed in this instance.

5. Summary

In summary, it is considered that the merits of this proposal and its bulk and scale which is complementary and sympathetic to the surroundings meets the objective of the LEP connected with floor space ratio control provides Council with adequate justification for relaxing the standards in this instance – since strict adherence is unreasonable and unnecessary.

10. Having regard to the totality of the evidence given at the hearing, concerning the character of the existing residential development within the locality of the development site together with the results of the Court’s comprehensive view (with the parties) of the development site in its immediate physical context (ie in the Street block bounded by Arundel, Seamer, Catherine and Derwent Streets) itself being a part of the larger area comprising “Bishopsthorpe” Conservation Area created by the LEP, I make the following findings in respect of each of the grounds relied upon in the Applicant’s SEPP No 1 objection (adopting the same paragraph numbers as employed in the objection)—

(l) The proposal does not meet or satisfy the express objectives of the maximum floor space ratio standard prescribed by the LEP because it does not reflect the existing residential development within the locality . Whereas the proposal is of a similar density to the 1920’s residential flat building situate on the adjoining land to the west (at No 29 Arundel Street) and is a little more dense than the more recent infill residential developments on the adjoining land to the east (Nos 21-19 Arundel Street and No 6 Catherine Street) those immediately adjoining developments do not themselves reflect the existing character and density of residential development within the locality , albeit they necessarily contribute to that existing development. Although the Applicant’s reliance upon the density of the immediately adjoining development is perfectly understandable, it is ultimately myopic and fails to address the relevant criterion of “ existing residential development within the locality ” ( cl 17(c) of the LEP).

I accept as an accurate description of the “ Bishopsthorpe ” Conservation Area the following description contained in the Leichhardt Development Control Plan 2000 (the DCP):
Bishopshtorpe was subdivided in 1856 as the first part of the Church lands to be developed. Being somewhat removed from the then City of Sydney, it has a generous street and lot pattern.

The area contains mainly single storey, double fronted workers’ terraces, with some grander houses on key sites. Its simple classical forms and spacious character with large trees in the road shoulder, is reminiscent of mid-19th century country towns, and unusual in an urban context. The area was retained by the Church for a century and then sold for public housing. But has maintained its unity down to details of fences, colour schemes etc. the smaller houses have been enlarged, mostly by rear additions, sympathetically enhancing uts rare value and unity as an urban townscape.

I also accept the following description of the existing development in Arundel and Catherine Streets contained at p 5 of Ms Warr’s Report (Exhibit 2):
Arundel Street is a varied streetscape of mostly the Victorian period – some terraces, detached and semi-detached dwellings with a landscaped edge behind palisade fencing to the streetscape.

Catherine Street has a mixed streetscape, given that it includes the backs of properties in Arundel Street as well as the sides of buildings fronting Derwent Street. A number of the buildings in Catherine Street is unattractive and non-contributory to the Conservation Area.

(2) Whereas, as I have noted in (l), the proposal’s floor space ratio (1.33:1) is approximate to the floor space ratio of the immediately adjoining lots (situate respectively on the eastern and western boundaries of the development site), that pattern of floor space ratio is not typical of the floor space ratio of existing development within the locality (which appears to be more in keeping with the prescribed maximum of 0.7:1);

(3) I do not accept Mr Jensen’s opinions that floor space ratio is (i) “an inappropriate way of regulating housing density given that the DCP also contains a variety of design standards….etc”; (ii) “a crude index of development intensity…etc”; or (iii) “a superfluous control”.

It may be accepted that the DCP contains detailed design standards aimed at achieving good residential design and development and good amenity outcomes (both for the proposed development and for adjacent or neighbouring developments). However, the existence in the DCP of those detailed controls does not per se eliminate the need for floor space ratio and landcaped area requirements imposed by the LEP for the purpose of ensuring that new residential development “reflects the existing residential development of the locality….” (cl 17(c) of the LEP). Those controls of the LEP secure a character of development in terms of mass, scale, and density, of new development and particularly its distribution on the development site in comparison with landscaped area also provided thereon. In the present case, it is surely noteworthy that the proposal while exceeding the prescribed maximum floor space by nearly 100 per cent just complies with the landscaped area requirements. This itself demonstrates the disproportionate amount of floor space of the proposal on the development site in comparison with the amount of landscaped area provided thereon.

Moreover, the Applicant’s objection that the floor space ratio standard is “inappropriate”, “crude” and “superfluous” in view of the detailed controls provided by the DCP is seriously undermined by the fact that the proposal does not comply with many of those DCP controls.
(4) The fact that the development site may perhaps enjoy the benefit of “existing use” rights cannot substantiate the grounds of the SEPP No 1 objection in view of the fact, as earlier noted, that the case has been conducted on the basis that existing use rights are not relied upon by the Applicant. That means, in my judgment, that they cannot be relied upon in the somewhat indirect or vague manner asserted in the objection to justify “greater flexibility in the assessment” of the development proposal.

11. For all the foregoing reasons, the Applicant’s SEPP No 1 objection has not been substantiated and cannot be upheld on any of the grounds advanced in support of it.

12. In view of my conclusion on the failure of the Applicant’s SEPP No 1 objection, I do not think that I should proceed to determine the planning merits of the proposal to the extent that they have not already been adjudicated upon in my determination not to uphold the Applicant’s SEPP no 1 objection.

13. This course is all the more necessary in view of the Applicant’s understandable desire to maintain its position for another future case concerning any “existing use” entitlements.

14. For me to now adjudicate unnecessarily on the planning merits of the proposal unconstrained by the operation and effect of the maximum floor space ratio prescribed by the LEP (which would be the approach to be taken on a planning appraisal of a proposal that successfully invokes existing use rights) could be prejudicial to any required adjudication on the planning merits of a future development proposal for the development site.

15. In the circumstances, the Applicant’s SEPP No 1 objection, having been held to have failed, it is appropriate that the inevitable legal consequence in these proceedings of that failure be given effect to, by an order dismissing the appeal and refusing development consent.

C. CONCLUSIONS AND ORDERS

16. For all of the foregoing reasons, I make the following orders—

1. Appeal be dismissed.

2. Development consent be refused.

3. Exhibits to be returned.

4. No order as to costs.