Ajaka v Parramatta City Council

[2013] NSWLEC 1019

Land and Environment Court

New South Wales

Case Title:	Ajaka v Parramatta City Council
Medium Neutral Citation:	[2013] NSWLEC 1019
Hearing Date(s):	8 & 9 October 2012
Decision Date:	01 February 2013
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	1. The appeal is dismissed. 2. The development application for an affordable housing development at 14 Fremont Avenue, Ermington is refused. 3. The exhibits, except Exhibit 1, may be returned.
Catchwords:	DEVELOPMENT APPLICATION: Affordable rental housing; permissibility, compatibility of the design of the development with the character of the local area.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011 Parramatta Local Environmental Plan 2001 Parramatta Local Environmental Plan 2011
Cases Cited:	Assaf v Parramatta City Council [2012] NSWLEC 1254 (Assaf) NSWLEC 1270 Chehade v Bankstown City Council [2012] NSWLEC 1122 Chehade v Bankstown City Council [2012] NSWLEC 221 Pingola Pty Ltd and Anor v Parramatta City Council [2012]
Category:	Principal judgment
Parties:	George and Ermanda Ajaka (Applicants) Parramatta City Council (Respondent)
Representation
- Solicitors:	Mr G McKee McKee’s Legal Solutions (Applicant) Mr A Seton Mardens Law Group (Respondent)
File Number(s):	10186 of 2012

JUDGMENT

1. This is an appeal against the refusal by Parramatta City Council (council) of a development application (DA/241/2011) under the Environmental Planning and Assessment Act 1979 (EPA Act) for an affordable rental housing development at 14 Fremont Avenue, Ermington.

2. The key issues between the parties are whether:

   i. the proposed development is prohibited; and
   ii. the design of the proposed development is compatible with the character of the local area.

Background and the proposal

1. The application was lodged on 16 March 2011 for the demolition of an existing dwelling, tree removal and the construction of a two-storey townhouse development comprising 6 x 3 bedroom dwellings under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The council refused consent to the application on 22 August 2011. The applicant appealed this decision and the Court, on 9 March 2012, granted leave to rely on amended plans. The amended application proposes:

   ·Demolition of the existing dwelling and ancillary structures;

   ·Removal of 16 trees;

   ·Construction of a part 1 and part 2 storey residential flat building which consists of 1 x 3, 3 x 2 and 3 x 1 bedroom units with access to each unit from the eastern elevation via a pedestrian footpath from Fremont Avenue and an unenclosed stair access to the upper units;

   ·A basement car park containing 9 car parking spaces, individual storage area, garbage room and a chair lift located to the south-western portion of the basement;

   ·The private open space for units on the ground floor is oriented to the south (6 and 7) and east (units 1 and 2). The private open for the units on the first floor is in the form of balconies which are orientated to the south (unit 5), north west (unit 3) and north east (unit 4).

The site and its context

1. The site is a regular shaped allotment on the southern side of Fremont Avenue with a fall of approximately 3m to the south (rear) of the site. The site has a frontage to Fremont Avenue of 20.08m, a southern boundary of 26.21m, an eastern boundary of 44.8m and western boundary of 45.72m which adjoins Cowells Lane Reserve to the rear. The site area is 1081sqm and a single storey dwelling and ancillary structures are currently erected on the land.

2. The site is surrounded predominantly by residential development comprising a mixture of single and double storey detached dwelling houses. A multi-unit development is located on Stewart Street and is approximately 187m north west of the site.

The planning controls

1. At the time the application was lodged with the council, the site was within the 2A Residential Zone under Parramatta Local Environmental Plan 2001 (LEP 2001). On 7 October 2011, Parramatta Local Environmental Plan 2011 (LEP 2011) was made and the site is located within zone R2 Low Density.

2. Both LEP 2001 and LEP 2011 permit dwelling houses with consent on the site. Development for the purpose of a "residential flat building" and "multi dwelling housing" are prohibited as innomminate uses under both instruments.

3. The parties agree that the development is for the purpose of a "Residential Flat Building" but disagree whether it is permissible on the site under the version of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) in force at the time the application was made.

4. Division 1 of Part 2 of SEPP ARH refers to infill affordable housing. Clause 10 identifies land to which the Division applies. Clause 11 sets out the forms of development to which the Division applies. Clause 12 permits development to which the Division applies to be carried out with consent. Clause 14 provides standards that cannot be used to refuse consent including density and scale, site area, landscaped area, deep soil zones and solar access. Clause 15(1) requires consideration of the provisions of Seniors Living Policy: Urban Design Guidelines for Infill Development.

5. On 20 May 2011, the SEPP ARH was amended by State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011 (Amending SEPP). Clause 10 of the Amending SEPP relevantly provides:

   (1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if:
   (a) the development concerned is permitted with consent under another environmental planning instrument, and
   .....

6. The parties agree that the proposed development is not permitted with development consent in the 2A zone under LEP 2001 or in the R2 zone under LEP 2011. Consequently, the development would not be permissible under the Amending SEPP, other than for the savings and transitional provisions in cl 54A(2) which provides:

   (2) If a development application (an existing application) has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made.

7. The parties agree that the development application was made before the commencement of the Amending SEPP but disagree whether it is an application to which SEPP ARH applied and therefore whether it is an "existing application" for the purpose of cl 54A(2). This disagreement centres on whether cl 10(1) of SEPP ARH applied to the site prior to the commencement of the Amending SEPP, which is discussed later in this judgment.

8. If the application is an "existing application", the Parties agree that it should be determined as if the Amending SEPP has not been made, other than the mandatory consideration in cl 54A(3) which provides:

   (3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

9. Parramatta Development Control Plan 2005 (DCP 2005) applied at the time the application was lodged and, on the making of LEP 2011, Parramatta Development Control Plan 2011 (DCP 2011) commenced.

The evidence

1. The appeal commenced on site and evidence was heard from objectors who were principally concerned that the proposal was an overdevelopment of the site which would increase the number of people and cars and result in unacceptable impacts on privacy, noise, parking and traffic. They considered that the affordable housing development was not compatible with the character of the local area and would adversely impact on residential amenity.

2. Expert town planning evidence was heard from Mr D Furlong, for the applicant, and Ms D Fernandez for the council.

   Is the development permissible?

3. "Multi unit housing" and "residential flat buildings" are prohibited land uses in the 2A zone under LEP 2001 and in the R2 zone under LEP 2011. The applicant relies for permissibility on the provisions of Division 1 of Part 2 of SEPP ARH, and on the discretion conferred by cl 54A(2) of the Amending SEPP to determine the application under the provisions of SEPP ARH, subject to the application of cl 54A(3).

4. The Council's position as identified in its Amended Statement of Facts and Contentions is that the proposed development is prohibited under LEP 2001 and LEP 2011. Further, the development application is not an "existing application" under cl 54A(2) of the Amending SEPP as Division 1 of Part 2 of SEPP ARH did not apply to the site before the Amending SEPP commenced. Therefore, the savings provision in cl 54A(2) does not apply and the development is not permissible as cl 10(1) of the Amending SEPP does not apply.

5. This difference of positions centres on whether the development site is within the R2 zone under LEP 2011 or within the 2A zone under LEP 2001 and, if so, whether the 2A zone is a land use zone that is equivalent to the R2 zone under the Standard Instrument.

6. Clause 10(1) of SEPP ARH relevantly provided:

   (1) This Division applies to a development site on land if the development site is within any of the following land use zones or within a land use zone that is equivalent to any of those zones, but only if development for the purposes of dwelling houses, multi-dwelling housing or residential flat buildings is permissible within the zone:
   (a) Zone R1 General Residential,
   (b) Zone R2 Low Density Residential,
   (c) Zone R3 Medium Density Residential,
   (d) Zone R4 High Density Residential.

7. Clause 5 of SEPP ARH is relevant to the interpretation of clause 10. It provides:

   5 Interpretation - references to equivalent land use zones
   (1) A reference in this Policy to a land use zone that is equivalent to a named land use zone is a reference to a land use zone under an environmental planning instrument that is not made as provided by s33A(2) of the Act:
   .......
   (b) ... is a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone.
   (2) An assessment made by a relevant authority under sub-clause 1(b) applies only in respect of the particular development that is proposed to be carried out and more than one such assessment may be made in respect of the same land use zone.

8. The expression "equivalent land uses" in clause 5(1)(b) is not otherwise defined.

9. The four zones identified in cl 10(1) are zones taken from the "standard instrument" as defined in clause 4 of SEPP ARH. The standard instrument is contained within the Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument).

   Applicant's submissions

10. The applicant submits that the application "should be determined, subject to the character test, as if the Amending SEPP had not been made". The applicant's primary submission is that cl 10 of SEPP ARH applies as the site is within the R2 zone under LEP 2011, which was imminent and certain when the development application was lodged and prior to the commencement of the Amending SEPP, therefore:

    the consent authority has the power to and should determine that due to the imminence and certainty of the draft LEP, that the R2 zone be given determining weight and therefore cl 10 is satisfied.

11. The applicant's secondary submission is that the 2A zone under LEP 2001 is equivalent to the R2 zone under the Standard Instrument. The applicant cites the decision of Sheahan J in Chehade v Bankstown City Council [2012] NSWLEC 221 (Chehade) where at [40] His Honour stated that when assessing zone equivalence, it "involves a component of comparison, but also a component of value judgment."

12. The applicant also referred to the decisions in Assaf v Parramatta City Council [2012] NSWLEC 1254 (Assaf) and Pingola Pty Ltd and Anor v Parramatta City Council [2012] NSWLEC 1270 (Pingola) where the Court concluded that the land uses in the 2A zone under LEP 2001 were not equivalent to those in the Standard Instrument. However, the applicant urges that a different assessment of equivalent uses be undertaken. He referred to the Department of Planning Practice Note (PN1-002) Preparing LEPs using the Standard Instrument: standard zones (Practice Note) which provides:

    In addition to the mandated uses, councils will need to determine for each zone whether to permit (with or without consent) or prohibit the other land uses.
    ......
    In addition, where the permissibility of certain land uses is provided for under a relevant SEPP (eg Infrastructure SEPP), there is no need to include these types of development in Standard Instrument LEPs.

13. On this basis, the Applicant submits that the uses that are permissible under the R2 zone should include permissible uses that are mandated in the Standard Instrument and those set out in various State Environmental Planning Policies, being:

    State Environmental Planning Policy (Affordable Rental Housing) 2009
    State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
    State Environmental Planning Policy (Infrastructure) 2007 (I SEPP)
    State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

14. The applicant prepared the following comparison table.

PERMISSIBLE USE COMPARISON
LAND USE	PLANNING INSTRUMENTS
PLEP 2001 2(a) Zone	Standard Instrument LEP MANDATED	VARIOUS SEPPs	PLEP 2011 R2
Bed and breakfast establishments	·	· Complying Exempt & Complying SEPP	·
Boarding houses	·	·	·
Car parking spaces	·	· Exempt (Exempt & Complying SEPP)
Centre based child care centres	·
Community facilities	·	·
Drainage (other than minor drainage works)	·	· Permissible without Consent (Clause 111 -I SEPP)
Dual occupancies	·	·
Dwelling Houses	·	·	· Exempt (Exempt & Complying SEPP)	·
Educational Establishments	·	· Permissible with Consent (Clause 28 - I SEPP)	·
Granny Flats	·	· Permissible with Consent as Secondary Dwelling (SEPP - ARH)
Group Home	·	·
Home based child care centres	·	· Exempt (Exempt & Complying SEPP)	·
Home Business	·	· Permissible without Consent	· Exempt (Exempt & Complying SEPP)	·
Hospitals	·	·
Housing for older people or people with a disability (Seniors housing)	·	· Permissible with Consent (SEPP - Seniors Living)	·
Local /Neighbourhood Shops	·	·
Medical Consulting Rooms (Health Consulting Rooms)	·	·
Places of public worship	·	·
Public buildings	·	·
Public Utility Installations	·	· Permissible with Consent (Various Clauses-I SEPP)
Public Transport Facilities	·	· Permissible with Consent (Various Clauses - 1 SEPP)
Recreation Areas	·	· Permissible with Consent (Clauses 65(3) - I SEPP)	·
Recreation Facilities	·	· Permissible with Consent (Clause 65(3)-I SEPP)	·
Roads	·	· Permissible with Consent (Clause 94-I SEPP)	·
Telecommunication facilities	·	· Permissible with & without Consent (Division 21 - I SEPP)
Demolition	·	Exempt (Exempt & Complying SEPP)	· (See Clause 2.7)
Subdivision	·	· Exempt (with Restrictions) & Complying (Strata Subdivision) (Exempt & Complying SEPP)	· (See Clause 2.6)
Total Permissible Uses	26	4	17	20
Total Permissible Uses	26	21	20

1. The applicant submits:

   The supplementary table provides that of the 26 permitted uses in the 2(a) zone under the PLEP 2001, 21 of those uses are permitted under the Standard LEP together with the above four SEPPs.
   The applicant submits that both the nature and the number of the uses must be compared by the Court: Assaf v Parramatta City Council [2012] NSWLEC 1254 at 25 & 39; Pingola Pty Ltd and Anor v Parramatta City Council [2012] NSWLEC 1270 at 24. Numerically, 21 out of a 26 possible uses is significant and may be described as comparable. The nature of uses are equivalent. For example the overwhelming dominant use of the zone in terms of area and likely future development applications relate to those of dwelling houses and create a low density residential character. The different uses that are arguably not equivalent are hospitals. Centre based child care centres and places of public worship are properly characterized as different uses but have a built form that in our submission is consistent with the mandatory uses.

2. As an alternative, the applicant submits that the R2 zone should include the mandatory uses in the R2 zone plus uses that are exempt development. These uses are then grouped into the following sets:

   a) Dwelling uses including - bed and breakfast establishments, dwelling houses, dual occupancies, granny flats, group homes, home based child care centres, home business, housing for older people or people with a disability.
   b) Commercial / more intense uses - boarding houses, centre based child care, health consulting / and medical rooms, hostels, local neighbourhood shops, place of public worship, respite day care centres.
   c) Public uses - public buildings, public utility installations, public transport facilities, telecommunications facilities.
   d) Council functions servicing residential areas - community facilities, emergency services facility, recreation areas, recreation facilities.
   e) Ancillary uses - car parking spaces, drainage (other than minor works), roads.
   f) Different uses - educational establishments, hospitals.

3. The applicant submits that the dominant built form character of the area is dwellings and that:

   ....the Court in forming the opinion as to whether there permissible uses that cause the zones to be equivalent, should attach greater weight to the permissible use of dwelling houses given the overwhelming domination of that use and its determinative role in creating the low density character of the area.
   The applicant submits that the sets of uses are generally common to both zones and are in fact equivalent. We repeat our submissions above that a purposive approach to
   interpretation of what uses are equivalent is reasonable in the circumstances where an R2 zone has been gazetted and the structural change brought about by the Standard Instrument required the removal of educational establishments and hospitals as being inconsistent with the zone objectives.

4. For the above reasons, the applicant submits that the 2A zone in LEP 2001 is equivalent to the R2 zone in the Standard Instrument and the development is permissible with consent.

   Council's submissions

5. The council submits that cl 54A(2) of the Amending SEPP is clear that an "existing application" relates to development to which SEPP ARH applied before the commencement of the Amending SEPP. SEPP ARH did not apply before the commencement because the site was not zoned R2 under LEP 2011 but was zoned 2A under LEP 2001, which is not a zone referred to in cl 10(1) of SEPP ARH. The fact that LEP 2011 was a draft, even if it was imminent and certain, is irrelevant.

6. In addition, cl 1.8A of LEP 2011 provides:

   If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced

7. Therefore, the development application must be determined on the basis that the site is zoned 2A under LEP 2001.

1. The council submits that for cl 10(1) of SEPP ARH to apply to the development site it is necessary to form the opinion required by cl 5(b)(i) of SEPP ARH as to whether 2A zone under LEP 2001 is "a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone" being the R2 zone.

2. The council submits that proper approach to this comparison is set out in Chehade and has been undertaken in a number of decisions of the Court, including Assaf and Pingola. The task involves a comparison of the permissible uses, both with and without consent, in the 2A zone under LEP 2001 and the R2 zone under the Standard Instrument "nothing more than that, nothing less than that".

3. The council submits that while an assessment under cl 5(1)(b) must be undertaken for each development application, there is no reason to depart from the findings in Assaf and Pingola. The set of land uses in the 2A zone are significantly different both quantitatively and qualitatively to those in the R2 zone. The council does not accept that additional uses that are permissible under the SEPPs should be included as, while these are types of development that may be carried out in the zone, they are not permissible under the zoning table in the Standard Instrument.

4. Even if this were to be the case, the council submits that a number of the uses in the applicant's table should not be included, such as "drainage (other than minor drainage works)" as this is permissible under cl 111 of I SEPP only if carried out by a council. Similarly "recreation areas" and "recreation facilities" should not be included as they have different definitions under I SEPP to those in the Standard Instrument.

5. The council submits that even if those uses that are permissible under the SEPPs are included as permissible in the R2 zone there is still a significant difference in the nature and number of uses.

6. In council's submission, the land uses permissible in the 2A zone under LEP 2001 are not equivalent to those in the R2 zone under the Standard Instrument and therefore clause 10(1) of SEPP ARH does not apply and the development is not permissible.

   Findings

7. I do not accept the Applicant's primary submission that cl 10(1) of SEPP ARH applies as the site was effectively within the R2 zone under LEP 2011 when the application was lodged. Even if LEP 2011 was imminent and certain, this does not mean that the development site is within the R2 zone for the purpose of cl 10(1). The site is within the 2A zone under LEP 2001.

8. I also do not accept the applicant's secondary submission that cl 10(1) applies, as the 2A zone has equivalent uses to those in the R2 zone. In Assaf Pearson C undertook an assessment required by cl 5(1)(b) of SEPP ARH and concluded that the 2A zone under LEP 2001 does not have equivalent land uses to the R2 zone under the Standard Instrument. Nonetheless, cl 5(2) of SEPP ARH provides that an assessment made under cl 5(1)(b) applies only in respect of a particular development that is proposed to be carried out and that more than one such assessment may be made in respect of the same land use zone.

9. Clearly, I am required to undertake the an assessment required by cl 5(1)(b) of whether equivalent land uses are permitted in the 2A zone under RLEP to those permitted in the named land use zone, being the R2 zone under the Standard Instrument. In undertaking such an assessment, I am bound by the principles established by Sheahan J in Chehade.

10. In Chehade, Sheahan J dismissed an appeal under s56A of the Land and Environment Court Act 1979 (LEC Act) against the decision of Morris C in Chehade v Bankstown City Council [2012] NSWLEC 1122 (Chehade No 1). These decisions outline the principles to form the opinion required by cl 5(b)(1). In Chehade, Sheahan J prefers the submissions of the council which outline:

    ....a comparison exercise for each of the zones. It involves identifying the zones, it involves identifying the land uses that are permitted in the two zones and the final step involves forming the opinion as to whether equivalent land uses are permitted to those permitted in the named zones, nothing more than that, nothing less than that. To qualify that process by saying that it involves getting a feel for the zones, getting a vibe from the zones, having a look at the objectives of the SEPP, having a look at the objectives of the Act we submit is to amend without proper justification, the clear words of the clause.
    ... the comparison exercise starts with the named zone for the purposes of this application the named zone is one of the zones identified in 26A through to G, they are the R1, R2, R3, R4, B1, B2 or B4 zones and gives to the consent authority as a matter of, not only quantitative but qualitative assessment for the task of forming the view, or to use the terminology within the clause forming the opinion, that equivalent land uses are permitted in one to the other.

11. Even if I accept the applicant's Table of permissible uses, there are still a number of additional uses in the 2A zone which are not permissible in the R2 zone. These include centre based childcare, community facilities, dual occupancies, granny flats, neighbourhood shops, medical consulting rooms, Places of Public worship and public buildings.

12. I do not accept the applicant's submission that in comparing the nature of the uses, greater weight should be given to dwellings, as these are the predominant form of development, rather than to the other uses. This is not what is required by cl 5(1)(b).

13. In Pingola, I undertook a comparison of the permissible uses in the 2A zone under LEP 2001 and the named uses in the Standard Instrument, particularly the R1 zone, and accepted that they were not equivalent.

14. For the above reasons, I find that the applicant's submissions provide no justification that a different decision should be reached to that in Pingola or to that in Assaf where Pearson C found at [39]:

    In considering the set of permissible uses in the 2(a) Residential Zone (2001 LEP) and the set of permissible uses in either the R1 or R2 Zones (Standard Instrument), there are significant differences, not only in the numerical tally of shared and exclusive uses, but also in terms of the nature of the uses permissible in the 2(a) Residential Zone, when compared to the permissible uses in either the R1 or R2 Zones.

15. I am not satisfied that equivalent land uses are permitted in the 2(a) Residential zone to those permitted in the R2 under the Standard Instrument. Clause 5(1)(b) is not satisfied and cl 10(1) of SEPP ARH does not apply. Therefore the proposal is not permissible. For these reasons the application must fail. For completeness, and as requested by the parties, I will briefly discuss the other main issue in dispute.

    Compatibility with character of the local area.

16. Mr Furlong and Ms D Fernandez held different opinions on whether the design of the proposal was compatible with the local area. This difference centred on whether the side setbacks and the first floor balconies were characteristic of the area.

17. Ms Fernandez considered that balconies off first floor living areas are uncharacteristic of the area and would result in overlooking of adjoining properties. In particular, she considered that from the balcony of unit 4 it would be possible to look into the front garden of 12 Fremont Street.

18. Ms Fernandez accepted that the front and rear setbacks of the development were acceptable but considered that the side setbacks did not reflect the "rhythm of development in the street", particularly the increased setback on the eastern side and its use as private open space.

19. In Mr Furlong's opinion the balconies and first floor living areas would not result in unacceptable overlooking and the use of the side setback area as private open space was acceptable and not uncharacteristic of the area.

    Findings

20. The site is a large and wide allotment and the experts agree that the development would appear as a two storey dwelling. The floor space ratio (FSR) of the proposal (0.47:1) is less than what is permissible for a dwelling (0.5:1) and a dual occupancy development (0.6:1) on the site under DCP 2005. The location of the building, particularly the two storey element, and its front and rear setback are consistent with the location of other houses and open space in the street.

21. The provision of private open space for units 1 and 2 in the increased eastern setback area is acceptable. There is a two metre wide drainage easement along this boundary which would require any development to be setback. The private open space of unit 1 adjoins the garage of 12 Fremont Street and the private open space of unit 2 adjoins its covered open space. The first floor balconies are located and generally orientated away from adjoining properties. Overlooking from unit 4 of the front garden of 12 Fremont Street is acceptable and could be resolved through the provision of a privacy screen.

22. For these reasons, I accept Mr Furlong's evidence that the design of the development is compatible with the character of the local area.

Conclusion

1. I accept that the amended design is compatible with the character of the local area and that cl 54A(3) of SEPP ARH has been adequately addressed. There is no reason on merits that would warrant refusal of the application.

2. However, for the reasons which I have discussed above, I have found that cl 10(1) of SEPP ARH does not apply to the site and that the development is therefore prohibited and consent cannot be granted.

Orders

1. The appeal is dismissed.
2. The development application for an affordable housing development at 14 Fremont Avenue, Ermington is refused.
3. The exhibits, except Exhibit 1, may be returned.

Annelise Tuor
Commissioner of the Court

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