Blasi v Wollongong City Council

[2018] NSWLEC 1074

Land and Environment Court

New South Wales

Medium Neutral Citation:	Blasi v Wollongong City Council [2018] NSWLEC 1074
Hearing dates:	29 - 30 January 2018
Date of orders:	20 February 2018
Decision date:	20 February 2018
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders:  1   Leave is granted to rely on amended plans tendered to the Court on 29 January 2018 as Exhibit A. 2   The appeal is dismissed. 3   Development Application No. 16/952 for demolition of existing structures and construction of four (4) townhouses Lot 1 DP 518982, known as 148 Brokers Road, Balgownie, NSW is refused. 4   The exhibits, except Exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: multi-dwelling housing development; insufficient site width; inadequate car parking space; excessive storeys; out of character.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Interpretation Act 1987 No 15 Land and Environment Court Act 1979 Wollongong Local Environmental Plan 2009
Cases Cited:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 revised Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Wehbe v Pittwater Council [2007] 156 LGERA 446 Wingecarribee Shire Council v De Angelis [2016] NSWCA 189
Category:	Principal judgment
Parties:	Andrew Blasi (Applicant) Wollongong City Council (Respondent)
Representation:	Mr S Nash, (Applicant) Mr J Reilly, (Respondent)   Solicitors: Planning Development Commercial Lawyers (Applicant) Wollongong City Council (Respondent)
File Number(s):	2017/97822
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) No. 16/952 for Lot 1 DP 518982, known as 148 Brokers Road, Balgownie, NSW (the site).

2. The DA was lodged with Wollongong City Council (Council) on 15 July 2016, to demolish existing structures and construct multi-dwelling housing consisting of four (4) townhouses.

3. The DA (16/952) was supported by a Statement of Environmental Effects (SEE) dated July 2016, which together were notified to residents between 28 July and 24 August 2016. Seven (7) submissions were received that referred to issues regarding: site width; tree removal; parking; flooding; noise; view loss; and not characteristic for local area.

4. Council determined to refuse the DA and a Notice of Determination was issued to the applicant on 28 February 2017.

5. A Class 1 appeal against the refusal of DA 16/952, pursuant to section(s) 97 (1) of the Environmental Protection and Assessment Act 1979 (EP&A Act) was initiated by the applicant on 31 March 2017.

6. In response to the s34 conciliation conference and a joint planning report dated 21 November 2017 (Exhibit 2), the applicant was granted leave by the Court on 29 January 2018 to rely on amended plans, submitted as Exhibit A.

Issues of agreement and contention

7. The Council contends that the application should be refused based on:

• insufficient site width,

• flooding impact,

• local amenity impacts, namely due to privacy loss and overshadowing,

• excessive number of storeys (for unit 4), and

• poor design outcomes, and

• inadequate parking.

8. During the hearing, the Council agreed that the contentions that relate to flooding were resolved based on amended plans (Exhibit A), which show: cantilevering of unit 4 decking over the drainage line; raised floor level of unit 4 by 200mm, above the predicted flood level; and siting of unit 4 footings outside of the drainage line.

9. Town planning experts whom presented evidence at the hearing were: Ms Perry (for the applicant); and Ms Byrne (for the respondent). Flooding experts whom attended the onsite hearing inspection and joint conferencing were: Mr Barthelmess (for the applicant); and Mr Carden (for the respondent).

The site

10. The site is located at 148 Brokers Road, Balgownie within a residential area dominated by single and two storey dwellings. The site is generally rectangular in shape, although slightly irregular in width, with a total site area of 1378m2. The site has street frontage along Brokers Road of 18.29m.

11. Existing at the front of the site is a single storey dwelling with a detached garage, shed and swimming pool located towards the centre of the site. The site is vegetated with established trees in the centre, and along the southern and western boundaries.

12. There is a cross fall of 6m from the rear of the property (on the southwest boundary) in an easterly direction along an existing drainage gully to the northern boundary in the rear of the site. Overland flow within this drainage line after high rainfall events discharges into the neighbouring property at 146 Brokers Road.

13. To the south of the site, at a distance of 90m is a controlled reservoir for Sydney Water. To the northwest of the site, at a distance of 1km is Balgownie Village.

Relevant planning controls

14. The site is zoned R2 Low Density Residential, pursuant to Wollongong Local Environmental Plan 2009 (WLEP 2009). Cl2.3 (2) of the WLEP 2009 requires that the consent authority must have regard to the zone objectives, when considering a development application. The R2 zone objectives are:

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

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

15. Cl7.14 (1) of the WLEP 2009 establishes the requirement, as a standard, for a minimum site width for multi-dwelling housing.

16. A request to vary the minimum site width standard was submitted by the applicant, pursuant to cl 4.6 of the WLEP 2009.

17. With specific reference to the site width requirement for multi-dwelling housing, the Wollongong Development Control Plan 2009

18. (WDCP 2009), Chapter B1, Sections 5.1.1 and 5.1.2, provides objectives and relevant development controls for achieving cl7.14 (1) of the WLEP 2009.

5.1.1 Objectives

(a) To allow for development of sites which are of sufficient size to accommodate the required building envelope, car parking and landscaping requirements.

(b) To encourage amalgamation of allotments to provide for improved design outcomes.

5.1.2 Development Controls

1. The Wollongong LEP requires a minimum site width of 18 metres for multi-dwelling development. Site width is measured for the full width of the site, perpendicular to the property side boundaries.

2. A minimum site width of 18m is required for attached dwelling development. Site width is measured for the full width of the site, perpendicular to the property side boundaries. This control may be varied for irregular shaped lots or where the development meets the requirements of setbacks, private open space, visual amenity, solar access, built form and landscaping.

3. Sites should be amalgamated, where required, to achieve the minimum site width requirement.

Has the minimum site width standard been met?

The standard and control

19. Cl7.14 (1) of the WLEP 2009 establishes a minimum site width standard for multi-dwelling housing of 18m. It specifies:

7.14 Minimum site width

(1) Development consent must not be granted for development for the purposes of multi dwelling housing unless the site area on which the development is to be carried out has a dimension of at least 18 metres.

20. The location for the calculation of site width is a matter of contention between the parties. The WDCP 2009, Chapter B1, Section 5.1.2 provides further detail on calculation of this standard, as follows:

5.1.2 Development Controls

1. The Wollongong LEP requires a minimum site width of 18 metres for multi-dwelling development. Site width is measured for the full width of the site, perpendicular to the property side boundaries.

2. A minimum site width of 18m is required for attached dwelling development. Site width is measured for the full width of the site, perpendicular to the property side boundaries. This control may be varied for irregular shaped lots or where the development meets the requirements of setbacks, private open space, visual amenity, solar access, built form and landscaping.

3. Sites should be amalgamated, where required, to achieve the minimum site width requirement.

Evidence

21. Ms Perry asserts that the site width when measured across the full length of the site, and taking into account the irregular shape of the lot, attains the 18m width for at least part of the site, as required in cl7.14 (1) of the WLEP 2009.

22. Ms Byrne however, contends that the site width when measured from the front line of the building envelope (at unit 1), perpendicular to the side boundaries, as described in the WDCP 2009 controls, is 17.66m resulting in a deficiency of 0.34m, equivalent to 1.9% of the minimum site width standard, as established in cl7.14 (1) of the WLEP 2009.

Findings

23. The apparent inconsistency in determining achievement of this development standard relates to where the measurement of site width on the site should be assessed, and the effect of the irregular shape of the lot.

24. To understand the intent of the minimum site width standard, it is useful to define ‘site area’, as provided in the WLEP 2009.

site area means the area of any land on which development is or is to be carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this Plan.

25. The calculation of site width is therefore understood to be attained from within the building envelope, defined by the site setbacks, as provided in the WDCP 2009.

26. Further to this, cl7.14 (1) of the WLEP 2009 stipulates that the site width must be assessed across the ‘full width of the site’. I understand this to infer that the side setbacks are not considered in the calculation of site width. The front and rear setbacks are however considered when calculating site width.

27. There was some discussion between the experts as to whether the minimum site width standard could be partially attained on the site or is established as a ‘minimum’.

28. Cl7.14 (1) of the WLEP 2009 specifically requires that the calculation of site width has a dimension of ‘at least 18m’. The heading of cl7.14 refers to ‘minimum site width’.

29. Cl35 (4) (a) of the Interpretation Act 1987 No 15 provides for clarification of the intent of a development standard based on the heading of the relevant provision, as follows:

35 Headings etc

(4) A heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)), or a marginal note, footnote or endnote in an Act or instrument, shall be taken to be part of the Act or instrument if:

(a) it is referred to expressly, otherwise than by means of matter within some other provision of the Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of the first mentioned provision) or by means of a symbol, in some other part of the Act or instrument, or

(b) not being so referred to, it is a heading, marginal note, footnote or endnote to a table or form in the Act or instrument.

30. Justices McColl, Basten and Payne in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 (at 20) explain the importance of applying the language and purpose of a provision.

20 Thirdly, the respondent relied below on a proposition that a local environmental plan “ought to be construed in the light of practical considerations, rather than by a meticulous comparison of the language of various provisions, such as might be appropriate in construing sections of an Act of Parliament”. That language, being sourced to Lord Reid in Gill v Donald Humberstone & Co [11] was recently cited with approval by Leeming JA in Tovir Investments Pty Ltd v Waverley Council. [12] Again, the point of principle should be accepted. It does not, however, require an abandonment of basic principles of statutory construction, which require attention to the language of the instrument and its apparent purpose. So called “practical considerations”, none of which was identified in the present case, do not empower the Court to embark on a wholesale rewriting of the instrument.

31. I therefore find that the purpose of cl7.14 (1) of the WLEP 2009 is to establish that the ‘site area’ has a minimum width of 18m, that is, a smaller width within the defined site area is non–compliant.

32. According to Exhibit A, the site width as measured perpendicular to the side boundaries within the ‘site area’ is 17.66m at the front (towards Broker Street), which thereafter widens to the rear of the site area to an estimated width of 18.25m. Therefore, the ‘minimum site width’ for the site is 17.66m.

33. I find that the applicant has not successfully demonstrated that the cl7.14 (1) of the WLEP 2009 standard for minimum site width has been achieved. The site does not attain a minimum site width of 18 m across the site area, and is not compliant with cl .14 (1) of the WLEP 2009.

Have the requirements for a cl 4.6 variation of minimum site width been met?

The standard

34. Paragraph 19 defines cl7.14 (1) of the WLEP 2009 for minimum site width standard.

35. Paragraph 33 determines that the minimum site width standard for the proposed development has not been achieved at this site.

The requirements

36. Cl4.6 of the WLEP 2009 provides opportunity for an exception to development standards, by way of a written request. Cl4.6 relevantly states:

4.6 Exceptions to development standards

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

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

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

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

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

Minimum site width objectives

37. There are no objectives for the minimum site width standard provided in cl7.14 (1) of the WLEP 2009.

38. In the cl4.6 written request, and with the concurrence of the experts, the WDCP 2009 objectives for minimum site width in Chapter B1, section 5.1 are adopted. They are as follows:

1. To allow for development of sites which are of sufficient size to accommodate the required building envelope, car parking and landscaping requirements.

2. To encourage amalgamation of allotments to provide for improved design outcomes.

The extent of the breach

39. Based on cl7.14 (1) of the WLEP 2009, the minimum site width is determined as 17.66m, which results in a deficiency of 0.34m, equivalent to 1.9% of the development standard.

40. Ms Byrne recognises that there is flexibility in assessing the site width control, provided the WDCP 2009 objectives for site width are addressed in the cl4.6 written request, and the following is ensured:

• all other WDCP 2009 controls are accommodated,

• any consequential non-compliance of WDCP controls are mitigated, and

• an accumulation of non-compliance of controls does not occur.

Written request

41. The written request, pursuant to cl4.6 (3) of the WLEP 2009 was prepared by the applicant’s town planner, Mr Ben McNamara, of MMJ Wollongong. The written request is submitted as Exhibit B, as an appendix of the SEE.

42. It is recognised by Ms Perry that the cl4.6 written request was prepared for the original planned development, as presented at the s34 conference. However, she contends that this written request, tendered as Exhibit B, is still applicable for consideration by the Court for the amended plans.

43. Further conferencing by the planning experts was undertaken as part of the hearing to assess the amended plans, as summarised in Exhibit 9.

44. The cl4.6 written request states that a variation to the minimum site width standard should be supported as follows:

1. The variation sought is in the order of 400mm, which is ‘highly unlikely to have adverse impact on the residents or wider streetscape’,

2. The objectives for the R2 zone will not be contradicted by the variation.

3. There are no specific provisions of the WLEP 2009 that will be contravened by the proposed variation, and the relevant objectives of the WDCP 2009 are attained, whereby:

1. The proposed building envelope allows for ‘functionality’, and achieves the ‘requirements for external landscape, POS areas, storage space and car parking’.

2. Amalgamation would not provide an improved design outcome as adjoining sites are ‘newly built forms that are unlikely to be considered for redevelopment in the near future. Notwithstanding this, the design outcome for the proposed development in terms of solar access, view sharing and amenity to the immediate area and adjoining properties is not considered to be negatively affected by the proposed development’.

4. Variation is not expressly excluded from the operation of cl7.14 (1) of the WLEP 2009.

5. There are sufficient environmental planning grounds to justify the variation.

6. Adherence to the standard is both unreasonable and unnecessary due to the ‘nominal departure of some 334mm will in no way create a physical built form non-compliance or further LEP or DCP departures. Therefore deeming compliance in this instance unreasonable in this instance’,

7. The variation is ‘not contrary to public interest’. The proposed development satisfies public interest requirements whereby ‘the development and the departure itself, are not considered will adversely impact surrounding built environment nor functionality of the neighbourhood nor be contrary to the public interest’.

Satisfies development standard objectives

45. In assessing a request for variation of a development standard, the consent authority, pursuant to cl4.6 (4) (a) (ii) of the WLEP 2009, must be satisfied that the proposed development will be in the public interest, based on consistency with the objectives of the site width standard and the objectives for development within the R2 zone.

46. The written request suggests that the proposed development provides ‘functionality’ within the useable space and exceeds the requirements for car parking.

47. The written request asserts that: ‘a positive residential amenity’ is created in terms of solar access to adjoining properties’; and ‘the immediate streetscape outlook and characteristics will not be compromised by the minor shortfall in site width’.

48. The parties are not in agreement as to whether the proposed development is in the public interest, particularly with regards to character.

49. Ms Byrne contends that the proposed development gives the perception of a three storey dwelling (for unit 4) at the rear of the site and when all the dwellings are viewed together due to their close proximity, the proposed development is out of character for the low density, single to two storey dwellings in the Balgownie area.

45. Ms Byrne further explained that there will be a perception when viewed from the street of an intense development, with dwellings occupying most of the building envelope that are enclosed by privacy screens.

46. Ms Perry does not support this perception on the intensity of the proposed development and considers that the elevation of unit 4 is consistent with the sloping nature of the terrain and will not be perceived to be out of character to the local area.

Compliance is unreasonable or unnecessary

52. In assessing a request for variation of a development standard, the consent authority, pursuant to cl4.6 (3) (a) of the WLEP 2009, must consider whether adherence to the standard is unreasonable and/or unnecessary.

53. The written request suggests that adherence to the minimum site width standard is both unreasonable and unnecessary, based on the ‘nominal’ departure from the standard, and that ‘this development outcome will provide an adequate amenity for both future occupants of the building and adjoining land uses, and the immediate streetscape outlook and characteristics will not be compromised by the minor shortfall in site width’.

54. Ms Byrne considers that the non-compliance of the minimum site width standard results in non-compliances of other WDCP 2009 controls, which accumulate across the site. She considers that the minimum site width standard is intended to mitigate any potential impacts resulting from a development.

55. In Ms Byrne’s opinion, due to the length of the site, the breach in the minimum site width standard is not small, and results in an exaggeration of the non-compliance of controls across the site area.

56. Ms Byrne considers that the cl4.6 written request does not recognise the accumulation of non-compliances in development controls. Therefore, a variation in the minimum site width standard is not justified as either reasonable or necessary.

57. Ms Perry however, considers that the breach in the minimum site width standard is ‘minor’ and confined only to the front portion of the site.

58. She asserts that as the site complies with the WLEP 2009 standards of height and floor to space ratio (FSR), together with the majority of WDCP 2009 controls, the proposed development does not result in any detrimental impact and achieves the objectives of the minimum site width control, as provided in WDCP 2009.

59. Ms Perry states that there is ‘no internal or external impact from the site width non-compliance’. It is therefore unreasonable and unnecessary to adhere to the cl7.14 (1) WLEP 2009 standard for minimum site width.

Sufficient environmental planning controls

60. In assessing a request for variation of a development standard, the consent authority, pursuant to cl4.6 (3) (b) of the WLEP 2009, must consider whether the development has ‘sufficient environmental planning grounds to justify contravening the site width development standard’.

61. The experts agree that the proposed development complies with the majority of WLEP 2009 standards, including height and FSR, and that the minimum site width standard is the only non-compliance of the WLEP 2009.

62. Agreement was reached by the experts as a result of conferencing in the hearing to adopt the 6 m front setback on the amended plans (in Exhibit A), as required under the WDCP 2009 controls. As detailed in Exhibit 9, this results in a reduction in the front portion of the first floor element and possible removal of the ‘Juliette balcony’ for unit 1.

63. The experts disagree as to whether the non-compliance of the minimum site width standard is well managed by the proposed development and provides a ‘functional’ site as suggested in the written request.

64. The experts also disagree on the implications of the minimum site width non-compliance on other WDCP 2009 controls.

65. Ms Byrne considers that the ongoing adjustments within and to the building envelope to accommodate the proposed development has consequential non-compliance of development controls. She contends that it proves the unsuitability of the proposed development for the site, which is constrained by the site width and flooding.

66. Ms Byrne identifies the following of non-compliances of WDCP 2009 controls that occur as a result of the site width non-compliance:

1. Car parking – to achieve the relevant WDCP 2009 control in Chapter E3, Schedule 1 of ‘1.5 car parking spaces per dwelling (70-110 m2),… plus 0.2 car parking spaces per dwelling or visitors’, a larger parking space is required between units 2 and 3. This is not available elsewhere on the constrained site.

2. Motorcycle space - the WDCP 2009 control, Chapter E3, Schedule 1 requires ‘one motorcycle space for a development of less than 15 dwellings’, which although currently achieved on the amended plans, cannot be met if the car parking between units 2 and 3 is increased to achieve the car parking control, as suggested by Ms Perry.

3. Passing bay - a passing bay is required in the driveway (Chapter E3, Section 8.1). The proposed location of the passing bay, is adjacent to unit 1 living area, which would breach the WDCP 2009 control specified in Chapter B1, Section 5.8.2 (h), that states ‘Manoeuvring areas immediately adjacent to the living/dining areas of dwellings is not permitted’.

4. Storeys – the WDCP 2009 control for the number of storeys permitted in an R2 zone for a multi-dwelling housing development (provided in Chapter B1, Section 5.2.2) is two (2). Unit 4 viewed from (Broker) Street and along the northern boundary would be as a three (3) storey dwelling, due to the raising of the floor level and open area under the decking, required for flood mitigation.

5. Solar access - louvers proposed (in Exhibit 9) adjacent to the proposed private open spaces (POS) of each unit along the northern boundary, could potentially impact internal solar access. Insufficient information is provided to fully understand this potential impact.

67. The experts agree that the car parking layout and design must be in accordance with Australian Standard AS2890.1, and that the car parking between units 2 and 3, as shown in Exhibit A, does not currently comply with this standard.

68. To address this non-compliance, Ms Perry suggests that the space currently allocated for motorcycles could be removed. She indicated that motorcycle parking is not required on the site as the proposed development is for less than 15 dwellings, and that there is sufficient off-site parking available for motorcycles along Broker Street. She proposes that the external walls of units 2 and 3 could also be adjusted to achieve the size required in AS2890.1.

69. The experts agreed that there is no other area on the site other than already planned, that could accommodate motorcycle parking.

70. The experts agreed that a passing bay is required; however Ms Perry did not consider that the proposed location of the passing bay would result in a loss of amenity to residents of unit 1.

71. Ms Perry considers that the proposed development complies with the WDCP 2009 requirement for two storey dwellings. She noted that the proposed development complies with the WLEP 2009 standard for height, and is consistent with the definition of a ’storey’, as provided in WDCP 2009 (Exhibit 3). The development therefore consists of two storey dwellings.

storey means a space within a building that is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but does not include:

(a) a space that contains only a lift shaft, stairway or meter room, or

(b) a mezzanine, or

(c) an attic.

72. Ms Perry acknowledged that further information was required on the potential impact to solar access on the proposed development from the proposed louvers, however did not consider that the louvers would create a consequential impact. She noted that the louvers could be fixed in a position to maximise solar access and privacy to residents, and conditioned on consent.

73. Ms Perry considers that any non-compliance of development controls is not significant, and that the proposed development achieves all WLEP 2009 standards, except minimum site width.

74. The experts agree that:

1. The proposed retaining wall along the southern boundary at the rear of the site could potentially impact neighbouring trees, identified in Exhibit A as 2, 3 and 4, due to proximity to the root zone. The Arborist report, Exhibit F, provides for protection measures for these trees that could be a condition of consent.

2. The growth potential of proposed vegetation along the northern boundary for privacy screening requires further information on soil depth, to be shown on the landscape plan. The requirement to protect these trees and furnish of additional information could be a condition of consent.

Findings

The assessment framework

75. Cl4.6 of WLEP 2009 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl4.6 (4) (a) (ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl4.6 (4) (a) (ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl4.6 (3) (a) and cl4.6 (4) (a) (i)). The fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl4.6 (3) (b) and cl4.6 (4) (a) (i)).

76. In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]:

The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.

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

Zone objectives

78. The (R2) zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the minimum site width standard is appropriate. The lack of relevance of the zone objectives to the variation of the minimum site width standard should therefore not be a matter that acts in a negative way. Pursuant to cl4.6 (4) (a) (ii), I find that the proposed development is consistent with the zone objectives.

Minimum site width objectives

79. The cl4.6 written request correctly identifies that the minimum site width standard in cl7.14 (1) of the WLEP 2009 does not establish any objectives. However, the written request states that in lieu of WLEP 2009 objectives for site width, the WDCP 2009 site width control objectives should be adopted.

80. The planning experts, both Ms Byrne and Ms Perry provided no objection to the consideration of WDCP 2009 site width objectives to be adopted in the assessment of the cl4.6 written request.

81. Both experts agree that the second objective, ‘to encourage amalgamation of allotments to provide for improved design outcomes’ is not relevant to this site due to existing, relatively new neighbouring developments that are unlikely to be a potential opportunity to expand the site. Following the site inspection, I agree that this objective is not relevant to the proposed development.

82. With regards to the first objective, ‘to allow for development of sites which are of sufficient size to accommodate the required building envelope, car parking and landscaping requirements’, Ms Byrne and Ms Perry disagree on whether the proposed development is of sufficient size to ‘function’ within the building envelope without consequential impact, particularly to car parking and character of the local area.

83. With regards to achievement of the first objective, I agree with Ms Byrne that the non-compliance of the minimum site width standard, compounded by the site constraint at the rear of the site which is subject to flooding, results in a site that is unable to sufficiently accommodate a multi-housing development consisting of four dwellings, as proposed by the applicant. To accommodate the four dwellings within the constrained building envelope, the development offers little relief to building form and cannot achieve the required controls for car parking.

84. Both experts agree that compliance with the Australian Standard (AS2890.1) for car parking space has not been met, and that sufficient car parking space can only be achieved at the expense of reducing the internal space to units 2 and 3, and/or the loss of onsite motorcycle parking.

85. The limitation on car parking space is directly related to the non-compliant site width that constrains the availability of site area to meet the required controls for the proposed development.

86. Therefore, I find that the requirement to provide sufficient car parking space has not been achieved. The first objective for site width requires the site to be of sufficient size to achieve controls such as car parking.

87. The experts are not in agreement as to whether the proposed development, particularly unit 4 is in the public interest, particularly with regards to local character.

88. The site is constrained by the drainage line at the rear of the site that is designated as a ‘high flood risk precinct’ in the Floodplain Development Manual (Exhibit G). Consequentially, the elevation of unit 4 has been raised to mitigate flood risk.

89. I do not agree with Ms Perry that the elevation of unit 4 is consistent with the slope of the terrain, and would not look out of character with the local area. This is informed based on the site inspection, viewing the surrounding and site terrain.

90. I also note that in Exhibit A, the slope of the site from the rear to the front (Broker Street) naturally has a fall about 3m, which will be significantly reduced under the proposed development. The proposed elevation of unit 4 roof is significantly greater above the roof of unit 1.

91. I accept that the terrain in the surrounding area is sloping, however, find that the roof elevation of unit 4 is exaggerated by the requirement to raise the floor of unit 4 above the flood level. Thereby giving an exaggerated height difference of unit 4 over the rest of the dwellings, creating the perception of a three storey dwelling.

92. The proposed development is out of character with the local area due this three storey perception of unit 4 when viewed from the streetscape. I therefore find that the proposed development is not in the public interest.

93. For this reason, I do not agree with the cl4.6 written request assertion that the objectives for site width control have been achieved.

94. On this basis, I find that cl4.6 (4) (a) (ii) of the WLEP 2009 has not been satisfied for the proposed development.

Is compliance with the standard unreasonable and/or unnecessary?

95. I accept that the proposed development attains all other WLEP 2009 standards, except minimum site width, which is the subject of the variation request. However, I do not accept that the written request has demonstrated that compliance with the site width compliance would be unreasonable or unnecessary.

96. In Wehbe v Pittwater Council [2007] 156 LGERA 446, Preston J described a number of ways to establish that compliance is unreasonable or unnecessary. The most commonly invoked way (and the way in cl4.6 (4) (a) (ii)) is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

97. For the reasons in the preceding and previous paragraphs, I find that the applicant has not established this to be the case.

Are there sufficient environmental planning grounds to justify contravening the development standard?

98. The experts have different interpretations as to whether the proposed development functions effectively within the constrained site width and whether it is sympathetic to the site constraints, being flood prone at the rear of the site.

99. Cl4.6 (2), WLEP 2009 provides that ‘Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument’.

100. However, cl4.6 (3) (b) of the WLEP 2009 imposes a precondition on the Court in exercising the power to grant consent to the proposed development where a development standard is not compliant, to assess ‘that there are sufficient environmental planning grounds to justify contravening the development standard’.

101. For reasons outlined in the proceeding paragraphs, I am not satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the development standard.

102. The experts agreed that there is: non-compliance with car parking space control/Australian Standard; and a lack of information on potential solar access impact. I agree with Ms Byrne that the passing bay located in the driveway adjacent to the living area of unit 1, contravenes on the basis of risk to public safety and amenity, the WDCP 2009 control specified in Chapter B1, Section 5.8.2 (h), which states that ‘Manoeuvring areas immediately adjacent to the living/dining areas of dwellings is not permitted’. I find the breach in car parking and passing bay controls are related to the non-compliance with the minimum site width.

103. Mr Nash took the Court to the matter of BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 revised (at 117), where McClelland J establishes the significance of permissibility in a zone:

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted…. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

104. The parties agree that the proposed development for multi-dwelling housing is permissible in the R2 zone. The parties however do not agree on the implications of the non-compliance of the minimum site width and whether there are sufficient environmental planning grounds to manage this non-compliance.

105. In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 revised, Justice McClelland goes on to explain the importance of ensuring environmental impacts are acceptable.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

106. I find that the site struggles to achieve ‘functionality’ in the development of four dwellings on a site that is constrained by a non-compliant site width together with the additional constraint requiring mitigation for flooding at the rear of the property. These constraints therefore limit the building envelope in such a way that the proposed development is unable to demonstrate sufficient environmental planning grounds.

106. In response to the words of the written request, ‘the development and the departure itself, are not considered will adversely impact surrounding built environment nor functionality of the neighbourhood’, I find that this has not been achieved with the proposed development.

107. It therefore follows from of what I have set out above, that the proposed development application should be rejected.

Orders

109. The orders of the Court are:

1. Leave is granted to rely on amended plans tendered to the Court on 29 January 2018 as Exhibit A.

2. The appeal is dismissed.

3. Development Application No. 16/952 for demolition of existing structures and construction of four (4) townhouses Lot 1 DP 518982, known as 148 Brokers Road, Balgownie, NSW is refused.

4. The exhibits, except Exhibits 1 and A, are returned.

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S Bish

Commissioner of the Court

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Decision last updated: 20 February 2018