Bhuta v Cumberland Council

[2023] NSWLEC 1241

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bhuta v Cumberland Council [2023] NSWLEC 1241

Hearing dates:

4-5 May 2023

Date of orders:

19 May 2023

Decision date:

19 May 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development consent for development application DA-2020/0569 for the demolition of existing structures, removal of five trees and construction of a multi dwelling development comprising six dwellings over basement car parking with associated earthworks and landscaping at 37 Tungarra Road, Girraween is refused.

(3) All exhibits are returned except for Exhibits A, K, L, Q, R and V.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling development in R3 Medium density residential zone – breach of the floor space ratio development standard – whether the proposed development will be in the public interest because it is consistent with the objectives of the particular standard

Legislation Cited:

Cumberland Local Environmental Plan 2021, cl 1.8A

Environmental Planning and Assessment Act 1979, ss 4.15, 8.3,8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Holroyd Local Environmental Plan 2013, cll 4.4,4.6

Land and Environment Court Act 1979, s 39

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Texts Cited:

Holroyd Development Control Plan 2013

Category:

Principal judgment

Parties:

Arun Bhuta (First Applicant)
Anita Bhuta (Second Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
A Bhuta (Self – represented) (Applicants)
A Seton (Solicitor) (Respondent)

Solicitors:
Marsdens Law Group (Respondent)

File Number(s):

2022/159368

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicants in this case are the owners of a property at 37 Tungarra Road, Girraween that they wish to develop and therefore, seek consent for the demolition of existing structures, removal of five trees and construction of a multi dwelling development comprising of six dwellings over basement car parking with associated earthworks and landscaping.

2. In broad terms, the six proposed dwellings are arranged in mirrored pairs on the site, separated by a central passage or pathway that provides pedestrian access to the dwellings.

3. To this end, development application No. 2020/0569 (the DA) was lodged with the Respondent on 30 September 2020, was notified between 4 - 25 November 2020, and again on a second occasion between 26 April - 10 May 2021 following amendment of the development application by the Applicant.

4. The development application was refused by the Respondent on 4 June 2021.

5. On 11 February 2022, the Applicant lodged a review application, No. REV 2022/0001, under s 8.3 of the Environmental Planning and Assessment Act 1979 (EPA Act) (the review application), and notification occurred between 11- 25 March 2022.

6. On 31 May 2022, the Respondent refused the review application.

Chronology of the appeal

7. On 2 June 2022, the Applicants filed an appeal in Class 1 of the Court’s jurisdiction under s 8.7 of the EPA Act.

8. While both the DA and the review application are cited in the Class 1 appeal, the Court understands the appeal to be in respect of the refusal by the Respondent of the review application.

9. On 29 June 2022, the Respondent filed a Statement of Facts and Contentions (SOFAC).

10. On 8 December 2022, the Court adopted Short Minutes of Order prepared by the Respondent that sought to identify experts to confer in respect of contentions set out in the SOFAC.

11. At this time, experts were identified by the parties for traffic engineering, and arboriculture and landscape who were directed to file and serve joint expert reports by 6 April 2023. The Applicant did not at this time nominate experts in the disciplines of planning, or stormwater engineering.

12. On 23 February 2023, the Court adjourned the directions hearing listed for the following day until 1 March 2023 following advice from the Respondent that the Applicant was yet to nominate experts in the disciplines of planning and stormwater.

13. On 28 February 2023, the Court was further advised by the Respondent, with consent of the Applicant, that the Applicant intended to file a Notice of Motion, on which basis the Respondent sought a listing on 7 March 2023 for the Notice of Motion to be heard jointly with the adjourned directions hearing to identify those experts that remained yet to be nominated.

14. On 7 March, the Notice of Motion was dismissed, and the Respondent was granted leave to file and serve individual expert reports in respect of town planning and stormwater, by 6 April 2023.

15. On 27 March 2023, the Court varied orders and directed that individual expert reports be prepared in respect of all disciplines, including planning, stormwater, traffic, and arboriculture and landscape, to be filed and served no later than 6 April 2023.

16. On 6 April 2023, the following individual expert reports were filed with the Court:

1. A report prepared by Mr Shaylin Moodliar in respect of planning.

2. A report prepared by Mr Sazzad Sarker in respect of stormwater and traffic engineering.

3. A report prepared by Mr Stephen Palucci in respect of arboriculture.

17. On 11 April 2023, the Applicant was granted leave to amend the development application and to rely upon amended plans and documents in the appeal, following which:

1. A supplementary planning report, prepared by Mr Moodliar, was filed dated 27 April 2023 (Exhibit 3).

2. A supplementary stormwater and traffic engineering report, prepared by Mr Sarker, was filed dated 28 April 2023 (Exhibit 4).

3. A supplementary arboriculture report, prepared by Mr Palucci, was filed dated 28 April 2023 (Exhibit 5).

18. At the commencement of the hearing, the Applicant sought to amend the development application with the following amended plans and other documents:

1. Amended Architectural plans.

2. Amended Hydraulic plans.

3. Amended hydraulics modelling.

4. Proposed electrical provision, and supporting emails prepared by Mr Rakesh Sharma of Hills Power.

5. Addendum to the cl 4.6 HLEP written request in respect of floor space ratio.

19. As a schedule of amendments was only provided at the commencement of the hearing, the Court granted the Applicant leave to provide an overview of the changes. In the course of this overview, a number of aspects were agreed by the Applicant to be incorrect or inconsistent.

20. That said, the Respondent, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) agreed to the Applicant amending the development application by virtue of those documents at [18], other than those at [18(2)] and [18(3)] given the Respondent was not in receipt of the electronic files that would permit interrogation of the modelling behind the hydraulic proposal, which was acknowledged by both parties as a different approach to that relied on in prior documents.

21. The Court marked the amended hydraulics plans for information only, and directed the Applicant to provide the amended hydraulics modelling in electronic form to the Respondent at the close of proceedings on the first day of the hearing, and further directed that corrected hydraulic plans and other documents be served on the Respondent by 9am the following day.

22. The following day, the Respondent confirmed receipt of the hydraulics information, but retained objection to the development application being amended by those documents given the change in hydraulic design was ‘fundamental’, and yet retained a number of flaws. That said, the Respondent also confirmed the experts had reviewed the documents and were able to provide ‘high level comments’.

23. In light of this, and in the interests of time, the Court, exercising the functions and discretions of Cumberland Council, as the relevant consent authority, under s 39 of the Land and Environment Court Act 1979 (LEC Act), agreed to the amendment of the development application by the hydraulic plans, later marked Exhibit V.

The site and its context

24. The site has a frontage to Tungarra Road of 20.2m, an approximate depth of 60m, and a total site area of 1,226m².

25. The site is legally described as Lot 254 in DP8768.

26. A survey (Exhibit F) identifies a modest fall towards the north east of the site, and a sewer drainage line diagonally traversing the site towards the rear.

27. The site adjoins two single-storey detached dwellings in a battle-axe arrangement to the north; and single-storey detached dwellings to the south and east.

28. The site is located within the R3 Medium Density Residential zone, according to the Holroyd Local Environmental Plan 2013 (HLEP) in which multi dwelling housing development is permitted with consent, where consistent with the objectives of the zone that are as follows:

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

•  To provide a variety of housing types within a medium density residential environment.

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

29. It is relevant to note here that the HLEP applies notwithstanding its repeal, by virtue of a savings provision at cl 1.8A of the Cumberland Local Environmental Plan 2021.

30. I also note here that the Holroyd Development Control Plan 2013 (HDCP) applies to the site, and permits multi dwelling development on sites with a lot frontage of greater than 20m where basement parking is proposed (Section B5.1, Control C6 of the HDCP), as is the case here.

31. The proceedings commenced with an onsite view, at which the Court’s attention was drawn by the Applicant to properties to the south of the site said to be similar in character to that now proposed.

32. The Court was also taken to the intersection of Oramzi Road and Tungarra Road where it is agreed by the parties that flooding occurs.

The floor space ratio standard is exceeded

33. The proposal exceeds the floor space ratio (FSR) development standard of 0.7:1 that applies to the site under cl 4.4 of the HLEP.

34. The Applicant relies upon a written request, prepared in accordance with cl 4.6 of the HLEP dated March 2023 (FSR request) (Exhibit L, Tab 1). Provision is made, at subcl (2), for development consent to be granted for development even though the development would contravene a development standard imposed, as is the case here.

35. Following preparation of the amended architectural plans (Exhibit K), the FSR request is amended by an addendum (the Addendum) (Exhibit R), correcting Sections 7 and 8 of that request with updated figures reflecting the amended plans.

36. I note here that the numerical figures in the addendum to the FSR request vary from the calculation of gross floor area shown in the Exhibit K plans, but I accept the variation is minor, and is likely a typographical error. It is also relevant to record that the gross floor area calculations on the Exhibit K plans result in an increase to the FSR from earlier plans.

37. The Applicant explains this arises from a change in the external wall construction, substituting Hebel block construction where brick was originally proposed. The result of this change is a thinner external wall, and greater internal floor area.

38. The Addendum sets out two alternative methods of calculating the FSR, that varies depending on the areas to be included in the calculation. The Applicant’s method of calculation results in a FSR of 72.72%, which I understand may be otherwise expressed as 0.727:1. In the alternative, should the floor area preferred by the Respondent be included, an FSR of 0.7368:1 results.

39. In closing submissions, parties agree that the FSR of the proposed development is 0.73:1.

40. Pursuant to cl 4.6(3)(a) of the HLEP, the FSR request seeks to justify the contravention of the development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, because the objectives of the FSR standard are, in the words of the FSR request, satisfied.

41. The objectives of the FSR standard at cl 4.4 of the HLEP are as follows:

(a)  to support the viability of commercial centres and provide opportunities for economic development within those centres,

(b)  to facilitate the development of a variety of housing types,

(c)  to ensure that development is compatible with the existing and desired future built form and character of the locality,

(d)  to provide a high level of amenity for residential areas and ensure adequate provision for vehicle and pedestrian access, private open space and landscaping.

42. The FSR request states in respect of objective (a), the proposal supports the viability of commercial centres by providing economic opportunities during construction and, once complete, by residents consuming goods and services in the local area.

43. Objective (b) is said to be satisfied by providing six units, that are a mix of three and four bedrooms with a range of internal layouts.

44. Objective (c) is said to be satisfied because the proposal reflects the intensity of recent approvals, so is consistent with the desired future character of the locality and will positively contribute to the character of the locality.

45. Objective (d) is said to be satisfied by providing off-street parking, lift access, and common outdoor circulation with landscape planting, provision of private open space, natural light, ventilation, solar access, visual and acoustic privacy.

46. While the Exhibit K plans result in an increase in the exceedance from that previously proposed, the Applicant asserts the increase in FSR will not be visible from the public domain, will not cause adverse impacts, is consistent with its context and does not add density to the site.

47. In his oral evidence, Mr Moodliar explains the FSR request is deficient because it fails to address the exceedance in terms of those aspects of the HDCP that are offended by the exceedance, including side setbacks, the number of storeys in the rear of the site, and the level of solar access achieved in the private open space.

48. The Applicant submits the proposal complies with all setbacks nominated in Section B5.2 of the HDCP, including the side setback for second storeys that provides:

“C8. Second storeys and above shall be setback at least 4 metres from the rear and side property boundaries of the dwelling.

Note: The side setback relates to the side of the dwelling irrespective of its orientation on the site. The rear setback relates to the rear of the dwelling irrespective of how it is orientated and does not relate to the rear of the site.”

49. According to the Applicant, the effect of the note to Control C8 is that the side setback travels with the orientation of the dwelling on the site. As the dwellings are oriented at 90 degrees to Tungarra Road, the side setback is the setback between dwellings on the site, and not the setback between the dwellings and the side boundary.

50. So understood, the setback to the south of dwellings 01, 03 and 05 is a rear setback that is required, by Control C7, to be 3m. This is provided by a wide central passage that separates dwelling units 01, 03 and 05, from the dwellings to the south, being dwelling units 02, 04 and 06.

51. In the alternative, the Applicant submits the objectives of Section B5.2 are achieved and so the controls should be applied flexibly, consistent with s 4.15(3A)(b) of the EPA Act.

52. Mr Moodliar refutes the Applicant’s construction of the side setback provision and asserts a side setback of 4m is required at the first floor from the side boundaries of the property to the north and south of the site.

53. Instead, built form at the first floor to dwelling units 01 and 02 is set back 925mm from the side boundary. Built form at the first floor to dwelling units 03, 04, 05 and 06 varies from 1825mm to 2705mm (Drawing D-08).

54. I accept Mr Moodliar’s evidence as to the proper reading of Control C8, and agree that the control seeks a setback to the side property boundary of 4m at the first floor. The note considers the side setback to be the side setback, irrespective of the orientation of the dwelling, which appears consistent with the thrust of the objectives to Section B5.2. These objectives seek to minimise bulk and scale and amenity impacts on adjoining properties (objective O1), visual and acoustic privacy for adjoining properties (objective O2), and solar access for adjoining residences (objective O3).

55. Mr Moodliar considers the built form at the first floor to dwelling units 03, 04, 05 and 06 to also breach the maximum number of storeys for multi dwelling developments set out at Section B5.3 of the HDCP. Control C5 provides as follows:

“C5. The maximum building height of one storey applies developments (Figure 28) such as:

• Row(s) or other arrangements of townhouses/terraces that are situated to the rear of townhouses/terraces at the street frontage (e.g. a second row of townhouses).

• A row of townhouses that predominately faces the side boundary rather than the street, for that part of the building that is not within the first 20m of building length (i.e. the first 20m is permitted to be 2 storeys and the building is then required to step down to 1 storey).”

56. The Applicant relies upon a report titled ‘merit assessment for number of storeys’ (Exhibit Q) to argue, firstly, the first floor to dwelling units 03, 04, 05 and 06 is in the form of an attic containing low traffic areas such as bedrooms, bathrooms and studies that do not compromise privacy of neighbouring properties. Secondly, the height and roof form are designed to minimise overshadowing to the private open space and living areas of the neighbours.

57. Three reasons are also given to justify the contravention of Control C5, summarised as follows:

1. The roof is raised to allow for insulation.

2. Dwelling 06 is raised off the natural ground level to elevate structure above the roots of three trees located on the adjoining property at No 35 Tungarra Road.

3. The first floor to the rear dwellings results in negligible adverse impacts to adjoining properties.

58. The merit assessment at Exhibit Q also sets out grounds for the proposal to be considered compatible with the medium density character of the local area, identified at certain addresses in Girraween and illustrated in Appendix B.

59. I do not accept the reasons set out in the Applicant’s merit assessment for two reasons. Firstly, the reasons at [57] are not supported by any compelling reasons for a first floor in the rear dwellings such as unique site conditions or constraints. Elevation of the structure of Dwelling unit 06 above tree roots is not an argument for built form at the first floor, and no evidence is provided to support the claim that the roof form is designed to minimise overshadowing to the property at No 35 Tungarra Road, which is an express concern of the owners (Exhibit B, folio 57) and which is located to the south of the subject site, and so is subject to overshadowing.

60. Secondly, properties purporting to be comparable to that proposed are not. In all cases, a lower built form is evident in the rear of the site, consistent with Control C5.

61. On the basis of the reduced setbacks to the side boundaries at the first floor, and the breach of the number of storeys control in the rear of the site, I do not accept the Applicant’s argument advanced in the FSR request that the objectives of the FSR standard are achieved. The proposed development is not compatible with the existing or desired future built form and character of the locality. The first floor built form to dwelling units 03, 04, 05 and 06 will be visible from the street, by virtue of the wide central passage that provides a sightline from the street to the rear of the site, as will the close setback of upper level built form, contrary to the side setback provisions observed elsewhere in the street. Finally, when the shadow diagrams at drawing D-17 (Exhibit K) are consulted, the offending built form appears to overshadow the northern windows to No 35 Tungarra Road from 9am-3pm in mid winter, contrary to general statements made in the FSR request that overshadowing is minimised.

58. I also accept Mr Moodliar’s evidence that the FSR request fails to provide sufficient environmental planning grounds to justify the contravention. The assertion made on p 29 of the FSR request, that numerical compliance with the landscaped area is achieved, is plainly wrong. When pressed, the Applicant acknowledged this to be the case, and argued instead that flexibility should be applied to the breach of the relevant control.

59. The landscape area control at Section B1.5, Control C10 relevantly provides:

“C10. The % of the total site area to be provided as landscape area for each residential development type shall be as follows:

• 20%- Dwelling house, dual occupancy and attached housing development on lots less than 600m2, and multi dwelling housing.

…”

64. The Landscape Plans at Exhibit E show an area of 27.22% of the site given over to landscape area. However, the Applicant accepts this calculation comprises side setbacks and narrow planter boxes on structure that are much less than 2m in width, contrary to control C1 of the HDCP.

65. The Applicant identifies a calculation on the Landscape plans of the landscape area consistent with the HDCP that amounts to 9.1% of the site area.

66. Mr Moodliar’s written evidence is that even the most generous assessment of landscape area in favour of the Applicant results in a landscape area of around 14% of the site area.

67. I accept Mr Moodliar’s assessment of landscape area. I find the Applicant has not ensured adequate provision for landscaping and so objective (d) of the FSR standard is not achieved.

68. Accordingly, I find the FSR request fails to demonstrate that compliance with the FSR standard is unreasonable or unnecessary, and also fails to provide environmental planning grounds that are sufficient to justify the contravention of the FSR standard.

69. The FSR request is infected by statements of wide generality, unsupported by objective evidence, such as the assertion that there is an unmet need for four bedroom dwellings. When pressed, the Applicant acknowledges this assertion is no more than a personal observation founded on the tendency for houses containing four bedrooms to be purchased when offered for sale.

70. The FSR request has also fails to heed the advice at [24] of Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 that environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole.

71. In failing to adequately address the matters required to be demonstrated by cl 4.6(3) of the HLEP, the Applicant has failed to demonstrate the proposed development is consistent with the objectives of the FSR standard and so I find the proposed development is not in the public interest and the appeal should be dismissed.

Orders

72. The Court orders that:

1. The appeal is dismissed.

2. Development consent for development application DA-2020/0569 for the demolition of existing structures, removal of 5 trees and construction of a multi dwelling development comprising 6 dwellings over basement car parking with associated earthworks and landscaping at 37 Tungarra Road, Girraween is refused.

3. All exhibits are returned except for Exhibits A, K, L, Q, R and V.

T Horton

Commissioner of the Court

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Decision last updated: 19 May 2023