ES Engineering and Drafting Pty Ltd trading as ES Engineering and Design v Canterbury-Bankstown Council

[2017] NSWLEC 1708

Land and Environment Court

New South Wales

Medium Neutral Citation:	ES Engineering & Drafting Pty Ltd trading as ES Engineering and Design v Canterbury-Bankstown Council [2017] NSWLEC 1708
Hearing dates:	21 November 2017
Date of orders:	12 December 2017
Decision date:	12 December 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is dismissed. 2. Development Application No. 1010/2016 for the demolition of all existing structures and the erection of four attached dwellings and the torrens title subdivision of each dwelling at 22 Lowana Street Villawood is refused. 3. The exhibits are returned with the exception of Exhibit 1.
Catchwords:	DEVELOPMENT APPLICATION: demolition of ail existing structures and the erection of four attached dwellings and the torrens title subdivision; whether variation to the minimum lot size development standard can be supported; whether the number of garage doors create an unacceptable impact
Legislation Cited:	Bankstown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979
Cases Cited:	Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Wehbe v Pittwater Council [2007] 156 LGERA 446
Texts Cited:	Nil
Category:	Principal judgment
Parties:	ES Engineering & Drafting Pty Ltd trading as ES Engineering and Design (Applicant)   Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: Mr M Arch, solicitor (Applicant) Mr A Seton, solicitor (Respondent)   Solicitors: Concordia Pacific (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2017/176203
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No. 1010/2016 for the demolition of all existing structures and the erection of four two storey attached dwellings, each with four bedrooms, and the torrens title subdivision of each dwelling at 22 Lowana Street Villawood (the site).

2. The council maintains that application should be refused because the development is prohibited as the minimum lot size development standard is not satisfied and the applicant has not justified the variation. Also, the appearance of four garage doors in the streetscape is unacceptable.

3. The council also suggested that the proposed dwellings may be characterised as “Multi-unit housing” and if so, different planning requirements apply although it was ultimately not necessary to address this contention however I have no trouble in concluding that this contention could be addresses through appropriate conditions, if consent was to be granted.

The site

4. The site is Lot 637 in DP 36612. It is irregular in shape and has an arc frontage (southern boundary) to Lowana Street of 21.955 m at the property boundary. The site widens to a width of 24.035 m at the rear (north). The site has a length on the west (side) boundary of 35.93 m, a length of 35.91 m along the eastern (side) boundary and an overall area of 822sqm.

5. Existing development on the site includes a single storey brick cottage, three metal sheds and a metal awning.

6. The immediate locality is characterised primarily by single dwellings and attached dual occupancy developments. Thurina Park adjoins the site across Lowana Street.

Relevant planning controls

7. The site is zoned R3 Medium Density Residential' under the Bankstown Local Environmental Plan 2015 (LEP 2015). The proposed development is a permissible use, with consent, in this zone as “Attached dwellings”. Clause 2.3(2) requires the Court to “have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. Clause 2.3(4) states that this “clause is subject to the other provisions of this Plan”.

8. Clause 4.1 provides minimum lot sizes for development and the interpretation of the requirements in this clause was the central issue in the proceedings and is discussed in detail later in the judgment.

9. Clause 4.3 provides a maximum height of buildings of 10m and cl 4.4 provides for a maximum floor space ratio (FSR) of 0.75:1. The proposed development satisfies both development standards.

10. Bankstown Development Control Plan 2015 (DCP 2015) applies. The relevant parts are contained in Section 6-Attached Dwellings of Part B1 Residential Development. It was agreed that the proposed development satisfies the requirements for the number of storeys (cl 6.1), street setbacks (cl 6.4), side setbacks (cl 6.6), private open space (cl 6.6), access to sunlight (cl 6.10) and visual privacy (cl 6.14). The relevant clause in DCP 2015 is cl 6.19 that states:

Building design

6.18.

6.19 The design of attached dwellings must:

(a) ensure a street facade incorporates architectural elements that are compatible with the asymmetrical appearance of neighbouring dwelling houses, particularly where a pattern is established by a group of adjoining dwelling houses; and

(b) ensure the front porch and one or more living area or bedroom windows to the dwelling face the street; and

(c) ensure any garage, driveway and front fence do not dominate the front of the dwelling and front yard.

11. The experts disagree on part of cl 6.19(c) relating to the dominance of the proposed garage doors.

What is the minimum lot size?

12. Clause 4.1(3) provides that:

(3)  The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

13. The Lot Size Map identifies a minimum size of 450sqm for the site.

14. Clause 4.1B relevantly provides:

4.1B   Minimum lot sizes and special provisions for certain dwellings

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

(a)  to ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas,

(b)  to ensure that multi dwelling housing and boarding houses in Zone R2 Low Density Residential retain the general low-density scale and character of existing single dwelling development,

(c)  to ensure that lots for non-residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, play areas, pedestrian access, set down and pick up areas, car parks, driveways and vehicle manoeuvring areas,

(d)  to minimise any likely adverse impact of the development on the amenity of the area,

(e)  where an existing lot is inadequate in terms of its area or width—to require the consolidation of 2 or more lots.

(2)  Despite any other provision of this Plan, development consent must not be granted to development on a lot in a zone shown in Column 2 of the table to this clause for a purpose shown in Column 1 of the table opposite that zone unless:

(a)  the area of the lot is equal to or greater than the area specified for that purpose and shown in Column 3 of the table, and

(b)  the width of the lot at the front building line is equal to or greater than the width specified for that purpose and shown opposite in Column 4 of the table.

Column 1	Column 2	Column 3	Column 4
Attached dwellings	Zone R3 Medium Density Residential	750 square metres	20 metres

15. Mr Seton, for the council and Mr Arch, for the applicant agree that there a “tension” between the minimum lot size requirements in cl 4.1 and cl 4.1B. Mr Seton explains this by submitting that the 750 sqm requirement in cl 4.1B(2) relates to the minimum lot size that is required for an attached dwelling application or in his words, the “parent lot” and the torrens title subdivision of such an application must not have a minimum lot size of less than 450sqm. Mr Seton accepts that this may present practical difficulties given the definition of “attached dwelling” that states:

attached dwelling means a building containing 3 or more dwellings, where:

(a)  each dwelling is attached to another dwelling by a common wall, and

(b)  each of the dwellings is on its own lot of land, and

(c)  none of the dwellings is located above any part of another dwelling.

16. Mr Seton submits that as attached dwelling are a permissible use in the R3 zone, require a minimum lot size of 750sqm and need a minimum of 3 dwelling to satisfy the definition of attached dwelling; then a starting point would be a density of 1 dwelling for every 250sqm of site area but subject to a satisfactory written request under cl 4.6 to justify the variation from the development standard in cl 4.1. On this basis, the site with an area of 822sqm is only able to accommodate 3 dwellings and not 4 dwellings, as proposed.

17. Mr Arch has a different interpretation. He submits that that there is no basis to apply the minimum lot size requirement in cl 4.1 as the resulting development would not be consistent with the “medium density” housing anticipated by the R3 zone but would be more consistent with the R2 Low Density Residential zone. Also, there is no basis in LEP 2015 for the suggestion of Mr Seton that the minimum lot size should be 250sqm.

18. Mr Arch further submits that the council has accepted that there are no amenity impacts associated with the development and the cl 4.6 written request provides a suitable justification for the proposed lot size.

19. In considering the differing submissions, I agree with the submissions of Mr Seton. To accept Mr Arch’s position would be to give no effect to cl 4.1. There is no basis to adopt this approach as the clause provides no exclusions from the minimum lot size of 450 sqm. If it was intended that the minimum lot size for attached dwelling was to be any size other than 450 sqm then it would been included in the exceptions, such as a “strata plan or community title scheme” in cl 4.1(4). The words in cl 4.1 are clear and even though there is a conflict between the minimum lot size of 450 sqm in cl 4.1(3) and the definition of attached dwelling and the specific minimum lot size for attached dwellings in cl 4.1B(2), the resolution of any conflict is ably done through cl 4.6.

20. Mr Arch submits that the written request under cl 4.6 provides justification for the variation, based on the applicable development standard being 450 sqm. Conversely, Mr Seton submits that the written request does not provide justification for the variation from 450sqm.

Can the variation to the minimum lot size standard be supported?

The requirements

21. Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly state:

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

…

22. The R3 zone objectives are:

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.

To allow for certain non-residential development that is compatible with residential uses and does not adversely affect the living environment or amenity of the area.

To allow for the development of medium density housing that has regard to local amenity and provides a suitable visual transition between high density residential areas and low density residential areas.

To require landscape as a key characteristic in the medium density residential environment.

23. The general objective of the minimum lot size standard as set out in cl 4.1(a) is:

(a)  to ensure lots are of sufficient size to accommodate certain development that is consistent with relevant planning provisions without adversely impacting on residential amenity.

24. The objectives of the minimum lot size standard as set out in cl 4.1B(1), for specific developments, including attached housing, are:

(a)  to ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas,

(b)  to ensure that multi dwelling housing and boarding houses in Zone R2 Low Density Residential retain the general low-density scale and character of existing single dwelling development,

(c)  to ensure that lots for non-residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, play areas, pedestrian access, set down and pick up areas, car parks, driveways and vehicle manoeuvring areas,

(d)  to minimise any likely adverse impact of the development on the amenity of the area,

(e)  where an existing lot is inadequate in terms of its area or width—to require the consolidation of 2 or more lots.

The development standard

25. Clause 4.1(3) provides that a minimum size of 450sqm applies to the site.

The extent of the breach of the minimum lot size standard

26. The proposed development provides the following lot sizes:

• Lot A: 211.68 sqm,

• Lot B: 201.14 sqm,

• Lot C: 200.74 sqm, and

• Lot D: 212.00 sqm.

The written request

27. Mr Ali Hammoud, the applicant’s expert town planner addressed the written request. The written request states that a variation to the minimum lot size standard can be supported because even if a 250sqm lot size per dwelling was accepted, this would achieve no greater density in the R3 zone than development in the R2 zone. Accordingly, a smaller lot size per attached dwelling should be provided in order to achieve the true intent of the R3 Medium Density Residential zone.

28. The development achieves the objective of the development standard by proposing lot sizes that are of sufficient size to accommodate the attached dwelling development as can be concluded from the plans which show 4x4 bedroom dwellings comfortably on the site. The development will be consistent with the relevant and applicable planning provisions and will not cause any adverse impact to residential amenity.

29. The development achieves the zone objectives by providing 4 additional dwellings to supplement the existing housing supply in the local area (first objective) and providing a medium density housing type within the medium density residential environment (second objective). The third and fourth objectives are not relevant and the development has been designed to provide an appropriate density, interface and transition to the open space to the south and future medium density development to the north, east and west of the site. Also, visual and acoustic privacy impacts are minimised and suitable levels of solar access is maintained (fifth objective). With the exception of the proposed driveways and pedestrian pathways, the development proposes a landscaped front setback area comprising lawn and vegetation. The proposed landscaping will form a key characteristic in the medium density development within the medium density residential environment (sixth objective).

30. The written request states that there are sufficient environmental planning grounds to allow the variation. These are:

• the LEP does not prescribe a minimum lot size for the subdivision of an attached dwelling development and accordingly, the generic minimum lot size for subdivision applies, which is unreasonable for the development;

• the proposed development proposes a density that will achieve the objectives of the R3 Medium Density Residential zone;

• the proposed development will achieve a dwelling density greater than that of the R2 Low Density Residential zone, as expressed in the zone objectives;

• the development achieves the objective of the development standard by proposing lot sizes that are of sufficient size to accommodate the attached dwelling development, will be consistent with the relevant and applicable planning provisions and will not cause any adverse impact to residential amenity;

• the development achieves compliance with the maximum height of buildings and FSR development standards of the LEP and provides an appropriate built form in response to the setback and building envelope controls of the DCP with no variations proposed; and

• the development observes a high degree of architectural design and merit that will provide an appropriate design outcome with a bulk and scale that will achieve a similar planning outcome for the site when compared to a development compliant with the minimum lot size.

31. Accordingly, the proposal is considered to have merit and there are sufficient environmental grounds to support the contravention of the development standard.

The council’s evidence

32. Ms Priscilla Prakash, the council’s expert town planner provided a joint statement with Mr Hammoud (Exhibit 4) and also a supplementary joint report (Exhibit 5).

33. The council’s contention on the minimum lot size development standard identified that the cl 4.6 written request was not acceptable because it, firstly did not adequately address the necessary matters in cl 4.6 and secondly, was not in the public interest to vary the development standard. Notwithstanding the particulars to the contention, Ms Prakash did not specifically address the matters in the cl 4.6 written request in her written evidence, particularly any reference to the zone objectives, the development standard objectives, whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case or whether there are sufficient environmental planning grounds to justify contravening the development standard. Ms Prakash did address a number of merit issues but not in the context of cl 4.6.

The assessment framework

34. Clause 4.6 of LEP 2012 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 cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(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 (cl 4.6(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 (cl 4.6(3)(a) and cl 4.6(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 (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

34. 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]:

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.

36. 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.

The zone objectives

37. Some zone objectives are broad and do not necessarily relate to the question of whether the minimum lot size should be varied (first and second objectives), some are not relevant (third and fourth objectives), and one satisfies the DCP requirement for landscaped area in the front setback area (sixth objective) however the remaining fifth objective is relevant. This objective is:

To allow for the development of medium density housing that has regard to local amenity and provides a suitable visual transition between high density residential areas and low density residential areas.

38. There is some overlap with some of the development standard objectives with this objective so they will be discussed together.

The development standard objectives

39. The objective of the minimum lot size standard as set out in cl 4.1(a) is relevant and states:

(a)  to ensure lots are of sufficient size to accommodate certain development that is consistent with relevant planning provisions without adversely impacting on residential amenity.

40. The relevant objectives of the minimum lot size standard as set out in cl 4.1B(1) are:

(a).to ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas,

(b).

(c).

(d).to minimise any likely adverse impact of the development on the amenity of the area,

(e).

41. If the relevant zone objectives, the objective in cl 4.1(a) and the relevant objectives cl 4.1B(1) are considered then the following general areas require consideration for the cl 4.6 written request:

• whether there is the ability to accommodate a dwelling of sufficient size (cl 4.1B(1), objective (a)), and

• whether there is an adverse impact on the local amenity (fifth zone objective and the objective in cl 4.1(a),) and the amenity of the area (cl 4.1B(1), objective (d)).

42. The evidence Ms Prakash and Mr Hammoud indicate agreement that the proposed dwellings satisfy the council requirements for setbacks to adjoining residential land, private open space and landscaped areas. Driveways and vehicle manoeuvring areas were not addressed by the experts and were not identified as a contention. Similarly, their evidence does not indicate any residential amenity impacts such as loss of privacy or overshadowing. The matter of providing a suitable transition to low density residential areas was not identified as a contention.

43. The objectives address amenity in two different contexts. The words “local amenity” and “amenity of the area” in the different objectives must have a different meaning to the words “residential amenity” in the same group of objectives given that they are referred to in different objectives and in different contexts. The word “amenity” is to be given a wide and flexible meaning in a planning context and in this case, “local amenity” and “amenity of the area” must go beyond any potential impacts on other residential properties, such as acoustic or visual impacts. The words “local amenity” and “amenity of the area” suggest that consideration needs to be given to the impact of the development on the locality or area and whether the development creates unacceptable impacts or affects the enjoyment of the locality or area because of the design of the building. In my view, and given that the word amenity should be given a wide and flexible meaning, this would include the concerns expressed by the council over the appearance created by the multiple garage doors facing Lowana Street.

44. In the first joint report (Exhibit 4), Ms Prakash and Mr Hammoud appeared to find agreement on the garage doors fronting Lowana Street with the following comments (at B.10):

We agree that the setting back of the garages a minimum of 1 metre behind the building line would result in a better design outcome and reduced garage dominance that is consistent with Clause 6.19(c) of Part 81 - Residential Development in BDCP 2015.

45. During cross examination, Ms Prakash however appeared to move away from this position by stating that the increased 1m setback was beneficial but not sufficient to overcome her concerns regarding the dominant appearance from Lowana Street. This was also the position adopted by Ms Prakash in Exhibit 5.

46. With the benefit of the site inspection and an understanding of the proposed plans, I am not satisfied that the presentation to Lowana Street is acceptable for a number of reasons. First, and while Mr Hammoud is correct in stating that the presentation to Lowana Street also includes the first floor area of the proposed dwellings; the absolute dominance of the four garage doors and four entry doors overpowers any mitigating effect of the first floor. Second, the examples provided by Mr Hammoud over multiple garage doors at the street frontage was limited to examples where there were only two garages and these examples are not really comparable to the proposed situation of four closely located garage doors. Third, I do not agree that by setting the garage doors back a further 1m achieves any measurable effect on the presentation to Lowana Street. Fourth, the location directly opposite a significant area of open space provides greater prominence to an undesirable element of the development. Fifth, no examples were presented to the Court where similar situations existed for four garage doors in such close [proximity to each other.

47. Pursuant to cl 4.6(4)(a)(ii), I find that the proposed lots are not of sufficient to accommodate the number of proposed dwellings (the objective in cl 4.1(a)) and there is an adverse impact on the local amenity and the amenity of the area (fifth zone objective, the objective in cl 4.1(a),) (cl 4.1B(1), objective (d)).

Is compliance with the development standard is unreasonable or unnecessary?

48. I do not accept that the applicant has justified the contravention of the development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

49. In Wehbe v Pittwater Council [2007] 156 LGERA 446 Preston J establishes a number of ways to establish that compliance is unreasonable or unnecessary. The most commonly invoked way (and the way in cl 4.6(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. For the reasons in the preceding paragraphs I do not accept that the applicant has established this to be the case.

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

50. For the reasons in pars 39 to 49, I am not satisfied that the applicant has provided sufficient environmental planning grounds to justify contravening the development standard and consequently the appeal must be dismissed..

Orders

51. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 1010/2016 for the demolition of all existing structures and the erection of four attached dwellings and the torrens title subdivision of each dwelling at 22 Lowana Street Villawood.

3. The exhibits are returned with the exception of exhibit 1.

_____________

G Brown

Commissioner of the Court

Decision last updated: 04 May 2018