Cuzeno Pty Limited v Hurstville Council

[2005] NSWLEC 677

Land and Environment Court

of New South Wales

CITATION:	Cuzeno Pty Limited v Hurstville Council [2005] NSWLEC 677
PARTIES:	Cuzeno Pty Limited (Appl) Hurstville City Council (Resp)
FILE NUMBER(S):	11539 of 2004
CORAM:	McClellan CJ
KEY ISSUES:	Appeal :- Section 56A appeal Whether there was an error in the approach taken to the application of the DCP Height controls
DATES OF HEARING:	15 August 2005
EX TEMPORE JUDGMENT DATE:	08/15/2005
LEGAL REPRESENTATIVES:	A Pickles (Appl) Abbott Tout (Sol - Appl) P Rigg (Resp) Deacons (Sol - Resp)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

MONDAY 15 AUGUST 2005

11539/04 CUZENO PTY LIMITED v HURSTVILLE COUNCIL

JUDGMENT

1 HIS HONOUR: This is an appeal from a decision of the Senior Commissioner in relation to a development application to demolish existing buildings and to erect a residential/commercial development on land known as 166-178 Stoney Creek Road Beverley Hills. The Senior Commissioner refused the application.

2 The site is a significant one, being at the corner of two major roadways and extending to a third roadway, Lee Avenue, which gives access to a residential area. The site has an area of 3124.5 m² and has a slope both along Stoney Creek Road and also away from the site on Lee Avenue.

3 The site is controlled by, amongst other matters, Hurstville Development Control Plan 12 - Beverley Hills. This is a detailed document prepared for the purpose of providing both general and particular controls in the area.

4 The site itself has been given particular consideration in relation to the set-back from Stoney Creek Road, defined as 24 metres, and the height control which is defined as either four-storeys or two-storeys. The level of particularity of the development control plan is reflected in the fact that the individual site is the subject of detailed mapping in which the controls are defined.

5 The proposed development exceeds the expectation in the DCP, both in relation to height and also in relation to the set-back from Stoney Creek Road. In relation to height, a part of the proposal where it will be prominent is four-storeys when the DCP provides for only two-storeys. A significant component of the proposal being the long section facing Stoney Creek Road is proposed to be three-storeys where the development control plan requires a two-storey building. In other words, in part, the proposal breaches the height control by 100 per cent, but the majority of the proposal will breach the height control by 50 per cent.

6 The Commissioner found that in particular the breach of the proposed three-storey section along Stoney Creek Road would be “highly visible” and “an obvious breach of the height control”.

7 As I have indicated, the building as proposed would also breach the set-back control which was referred to in the proceedings as the “maximum building depth control.” That control was imposed in order to provide for equity of development potential between the sites controlled particularly by the DCP and adjoining land.

8 In the context of the present proposal, it would appear that it was intended that there would be a maximum set-back from Stoney Creek Road to allow for the development of land to the rear, free from excessive intrusion of development fronting Stoney Creek Road.

9 The combination of a breach of the height control and a breach of the set-back control has a potential for significant impact upon any development to the rear.

10 My understanding is that in particular the four-storey section of the proposed development breached the set-back control where the proposal would have taken the development to the rear boundary. This was a significant breach of the relevant control.

11 I have reviewed the transcript of the proceedings and also the written evidence given by the court appointed expert Mr Shiels. It is plain from a reading of that material that the significance of the development control plan, and whether or not it should be complied with, was the central issue in the proceedings. Accordingly, the parties evidentiary endeavours and submissions were focused upon whether, notwithstanding the controls within the DCP, there were reasons in the circumstances of this case which would justify a departure.

12 In this respect, the parties made submissions following upon the discussion by Mr Shiels of the decision of this Court in Stockland Developments Pty Limited v Manly Council, (2004), 136 LGERA 254. In that decision I considered earlier decisions of this Court and of the Court of Appeal and formulated, in summary form, the approach which I believed to be appropriate to consideration of a development application which, in its terms, breaches an adopted DCP. It is unnecessary for me to repeat that discussion in these reasons, however, the transcript reveals that a discussion of those principles was central to the argument in the present matter.

13 The DCP is in a form which provides a statement of objectives, design principles, and design solutions and controls. They are relevantly set out on page 5 of the document and are in the following terms:

“Each section of this DCP contains objectives, design principles, and controls.

§ Objectives clearly state what Council seeks to achieve once the design principles are met.

§ Design Principles are the outcomes that must be met.

§ Design solutions and Controls are prescriptive means of achieving the desired objectives.”

14 The DCP then continues with these statements by way of guidance to prospective applicants:

“In order to meet the objectives in some sections of the DCP, you should comply with the building envelope control as well as meet council’s design principles. Council will, however, consider a variation to the envelope where an applicant can demonstrate that such a variation better satisfies the relevant design principle.
In this way, the DCP provides flexibility to the applicant and an opportunity for an innovative approach to development.”

15 After giving guidance as to how an application should be framed, the following is said:

“In considering the proposal, Council will assess if the objectives of the DCP have been met and whether or not satisfying the design principles provides for a more appropriate outcome.”

16 It is apparent from the form of the DCP that the author has recognised a need at the development control plan level of flexibility in the administration of the development process. Rigidity may be unproductive. Flexibility has been recognised in order to ensure that although numerical parameters may be provided if an applicant can demonstrate that a proposal which breaches the numerical requirements “better satisfies the relevant design principles” or provides for “a more appropriate outcome” it may be approved.

17 As I understand the plan the Council expects that its provisions will be met unless an applicant can demonstrate that although the relevant provisions are breached, a more satisfactory planning outcome can be achieved. If the planning outcome is not an improvement upon that which would be achieved by compliance with the DCP, the plan must be complied with.

18 The authors of the DCP seem to me to have captured the essence of what I said in Stockland. In particular, the principles which I enunciate on page 272 at paragraph 87 of the judgment.

19 The Senior Commissioner’s decision is criticised in this appeal. It is submitted that it reveals an error of law in the approach which he has taken to the application of the DCP. It is submitted that although the DCP recognised a capacity to depart from the numerical control which may have been provided, the Senior Commissioner failed to recognise this opportunity. Instead, it is submitted that the Senior Commissioner concentrated upon whether or not the DCP had been consistently applied and whether to allow the present application for consent would have undermined the capacity to seek that future developers comply with its provisions. Framed in succinct terms, the submission which was made on behalf of the applicant was that the Senior Commissioner failed to ask himself the question “whether strict application of the DCP was necessary having regard to the provisions of clause 1.8.” Clause 1.8 are the provisions to which I have earlier referred.

20 In my opinion, the Senior Commissioner has not made an error of law in his consideration of this proposal.

21 I should briefly refer to the essential matters in the reasons of the Senior Commissioner. He commences his analysis of the relevant considerations by identifying the nature of the proposal and then refers to the relevant planning controls and the issues. Under that heading the Senior Commissioner makes plain that as the proceedings evolved before him, “It became clear that there was only one major issue, ie non-compliance with DCP 12.”

22 The Senior Commissioner refers to the objective evidence which reflected two main concerns. One concern was traffic and parking problems. The other was a concern about compliance with the height limit set by DCP 12. It would seem that again, the height problem reflected in the breach of the DCP became the dominant issue in the proceedings.

23 The Senior Commissioner turned his attention to the non-compliances with the DCP, being the number of storeys and the maximum building depth. In relation to the building height, the Commissioner identifies the relevant controls and the nature and extent of the breaches. He also identified that Mr Shiels, who had been appointed by the Court to give expert evidence, agreed with the applicant that a three-storey building facing Stoney Creek Road was acceptable. However, he was also of the view that it was a significant non compliance with the DCP. It was Mr Shiels’ view that if this breach was allowed, “the council would have difficulty in imposing DCP 12 on future developments.”

24 The Senior Commissioner then brought to mind the reasons for judgment in Stockland and identified three principles as relevant to his consideration:

1. the extent to which the DCP is a result of community consultation;
2. the consistency with which the DCP has been applied; and
3. the quality of planning outcome if the DCP is applied.

25 The latter statement is an accurate reflection of the principles I enunciated in Stockland although expressed in somewhat cryptic form. However, to my mind, it raised a relevant question in the present proceedings, being whether or not the outcome achieved by compliance with the DCP, was necessary having regard to the identified quality of the proposed design.

26 The Senior Commissioner then deals with the question of consistency of the application of the DCP by the Council. He concludes that the extent of the departure from the numerical control provided by the proposed three-storey section of the development would provide:

“Where DCP 12 requires a two-storey building (a development which) would be highly visible and an obvious breach of the height control”.

27 The Senior Commissioner also concluded that an approval of a three-storey building would be a heavy blow to the prospects of enforcing DCP 12 in the future.

28 The Senior Commissioner then turned his attention to the planning outcome which would be achieved in the circumstances of the identified significant breach. He said this:

“As regards Mr Ball’s submission that a three-storey building is just as acceptable as a two-storey building, I do not think that this provides a reason for abandoning the DCP. DCP 12 is the expression of subjective preferences of a local community. In order to depart from the DCP, the Court would need to be convinced that its planning outcome is undesirable. The fact that there are other acceptable options is not a reason for setting aside the DCP”.

29 Although the Senior Commissioner’s reasons could have been expressed in a manner which more clearly identified the issue called up by the relevant parts of clause 1.8, I am satisfied that he has framed for himself the appropriate question.

30 As I earlier indicated, clause 1.8 contemplates compliance with the DCP unless an applicant can demonstrate that the relevant variation “better satisfies the relevant design principles”.

31 Clause 4.1.5 of the DCP makes provisions in relation to height. The objective is said to be, “a coherent streetscape is provided with consistent height” and a design principle is identified as being, “building heights remain consistent”. The permitted design solutions and control are provided by maps which include the maps that provide for the subject site. There is some difficulty in understanding what the authors of the DCP had in mind when they referred to the design principles being “building heights remain consistent”.

32 A statement in those terms raises the question of “consistent with what?” Although this could not be a practical approach to the identification of appropriate development, obviously if a starting point for height was provided in excess of any height contemplated in the DCP, it could be argued that maintaining a height consistent with that starting point met the design principle of the DCP. However that would be open to arguments which could lead to absurd and plainly unsatisfactory outcomes.

33 Accordingly, it seems to me that the design principles have been expressed in the expectations of various heights which have been provided in the identified design solutions and controls. Although perhaps the application of clause 1.8 would allow for some variations from those controls, it seems to me that a faithful application of the DCP would require a building which in a large part met the expectations included within the numerical controls.

34 Beyond those difficulties, it is plain that if a building which breaches the relevant control is to be approved, the author of the DCP provided that the proposal had to better satisfy the relevant design principle.

35 The Senior Commissioner addressed that matter when he said that before departing from the development control plan the Court would need to be convinced that its planning outcome is undesirable. By that expression I understand the Senior Commissioner to have in mind that the Court would have to be shown that the outcome contemplated by the DCP gave rise to an unsatisfactory planning solution.

36 Perhaps if he had stopped at that point in his reasons, there may have been some force in a submission that he had not addressed his mind to all of the matters which the DCP required to be considered. However, he continued by saying, “The fact that there are other acceptable options is not a reason for setting aside the DCP”.

37 My understanding of what the Senior Commissioner is saying at this point is that he has not been persuaded that the proposal which breaches the numerical requirements of the DCP “better satisfies” the relevant design principles.

38 Accordingly, I reject the submission that the Senior Commissioner has failed to reason to his conclusion after consideration of the test provided by the DCP.

39 A further challenge is made to the Senior Commissioner’s reasons. The Commissioner identified the control within the DCP in relation to the maximum building depth. He said:

“The significance of this requirement is that it assists in the co-ordinated development of adjoining sites. In my opinion, if the applicant wishes to depart from the requirement, it has the responsibility to show that the departure does not unfairly constrain the development potential of the adjoining site. There was no suggestion that this aspect has even been considered.”

40 It was submitted that the Senior Commissioner had failed to give procedural fairness to the applicant by not raising during the hearing the basis upon which the Senior Commissioner was considering and, ultimately, said the proposal failed to satisfy the building depth obligation.

41 The statement of issues in the proceedings picked up a number of matters, one of which was in express terms “non-compliance with the maximum building depth control”. There was also provided to the Senior Commissioner a submission prepared in writing by the architect for the proposal where it was argued that the breach of the building depth control was reasonable.

42 In my opinion, the building depth control, although no doubt designed to ensure adequate light ventilation and other amenity attributes for adjoining buildings, was nevertheless a significant control on the prospective development of the sites to which it applied. Its ultimate significance as a restriction on the possibility of development impacting upon the amenity of adjoining properties, was reflected in the approach which the Senior Commissioner took to the matter.

43 Any experienced architect or planner would be aware that a building depth control of the type provided in this DCP would have been created in order to protect the amenity of adjoining properties so as to ensure that there was a fair distribution of the development potential between neighbouring properties. The fact that the Senior Commissioner expressed his conclusion as he did, is but a reflection of what would have been ordinarily understood between people of relevant expertise and experience.

44 Accordingly, the issue having been squarely raised by the Council and an opportunity provided to the applicant through its architect to provide a response to it, I am not persuaded that the applicant was denied procedural fairness.

45 In any event it seems to me that the merit considerations in this case turned largely upon the significant breaches of the height controls in the DCP. On any view of the matter, this application sought to achieve development greatly in excess of the expectations provided in the DCP which, it was accepted by all parties, had been created after appropriate community consultation and which reflects the community’s expectations for development within its area.

46 In these circumstances, it seems to me that it is not surprising that the Commissioner was concerned to examine the impacts of the proposal to see whether or not the DCP inherently provided an unsatisfactory planning outcome and then to consider whether or not the proposal was not just another acceptable option or whether it was better than the option which the DCP would dictate.

47 It is plain from the Commissioner’s reasons that he was not satisfied that a better solution had been developed by the applicant and for this reason the application was refused.

48 In these circumstances, there is no error of law and I dismiss the appeal.

49 I further order the appellant/applicant to pay the respondent council’s costs.

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