Golden Max Pty Limited v Hurstville City Council

[2015] NSWLEC 1234

Land and Environment Court

New South Wales

Medium Neutral Citation:	Golden Max Pty Limited v Hurstville City Council [2015] NSWLEC 1234
Hearing dates:	11 June 2015
Date of orders:	30 June 2015
Decision date:	30 June 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	Development Application: multi dwelling housing, density development standard
Legislation Cited:	Environmental Planning and Assessment Act 1979; Hurstville Local Environmental Plan 2012; State Environmental Planning Policy Affordable Rental Housing 2009
Cases Cited:	Wehbe v Pittwater Council [2007] NSW LEC 827; Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Texts Cited:	Development Control Plan No. 1 – Hurstville LGA Wide
Category:	Principal judgment
Parties:	Golden Max Pty Limited (Applicant) Hurstville City Council (Respondent)
Representation:	Mr J Reid Mr J Fan, Pikes & Verekers Lawyers (Applicant) Mr A Seton, Marsdens Law Group (Respondent)
File Number(s):	11086 of 2014

Judgment

1. Golden Max Pty Ltd lodged Development Application No 2014/0140 with Hurstville City Council on 7 March 2014 seeking consent to demolish an existing dwelling house and construct a multi dwelling housing development containing four dwellings and strata subdivision (original application). The application was refused on 15 July 2014 and Golden Max sought a review under s82A of the Environmental Planning and Assessment Act 1979 (EP&AAct). The plans lodged with that application reduced the number of dwellings to three. The council confirmed its refusal on 17 December 2014 and Golden Max is appealing that decision.

The site and its context

2. The site is legally described as Lot 5 in Deposited Plan 25557 and known as No 51 Johnstone Street, Peakhurst. It is a rectangular shaped allotment located on the western side of the street with a frontage of 15.24m, depth of 60.96m and area of 923.2sqm.

3. Existing development on the site comprises a single storey weatherboard and tile dwelling in the centre of the site with a detached outbuilding to the rear. A concrete driveway is located adjacent to the northern side boundary and leads to a large detached fibro and tile garage in the north western corner.

4. Development in the vicinity of the site is low density in nature and contains a variety of dwelling styles. The immediate development comprises detached dwelling houses with a multi dwelling development opposite the site. There are detached houses, dual occupancy development and multi dwelling housing in Johnstone Street however the dominant built form is detached housing. According to the Council’s Statement of Facts and Contentions, the two multi dwelling developments in the section of Johnstone Street between Henry Lawson Drive and Evans Street were approved prior to the council’s current planning controls.

Background and the proposal

5. Golden Max amended its plans when it lodged the s82A review application and, following a conciliation conference presided over by another Commissioner of the Court, made further amendments. Leave to rely on those further amended plans was granted on 14 April 2015. Those plans are the plans before the Court (Exhibits A-E).

6. The proposed development is for demolition of existing buildings and the construction of a two storey, multi dwelling housing development containing three x four bedroom dwellings which incorporate double garages. Strata subdivision is proposed however no plans have been provided to the Court that detail the proposed subdivision.

The planning controls

7. The site is zoned R2 Low Density Residential under Hurstville Local Environmental Plan 2012 (LEP). The proposed development is permissible with consent in that zone. Demolition and subdivision require consent (clauses 2.6 and 2.7).

8. Clause 2.3(2) of the LEP requires a consent authority to have regard to the objectives of the zone when determining a development application. The objectives of the R2 zone 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.

• To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area.

• To ensure that a high level of residential amenity is achieved and maintained.

• To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment.

• To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity.

9. Clause 1.9 is in the following form:

1.9 Application of SEPPs

(1) This Plan is subject to the provisions of any State environmental planning policy that prevails over this Plan as provided by section 36 of the Act.

(2) The following State environmental planning policies (or provisions) do not apply to the land to which this Plan applies:

State Environmental Planning Policy No 1—Development Standards.

10. Part 4 of the LEP contains principal development standards and clause 4.1 applies to minimum lot sizes and is in the following form:

4.1 Minimum subdivision lot size

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

(a) to retain the pattern of subdivision in residential zones while allowing infill development of smaller lots in some areas,

(b) to ensure lots have a minimum size that would be sufficient to provide useable area for building and landscaping,

(c) to require larger lots in the foreshore area or where the topography or other natural features of the site limit its subdivision potential.

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(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.

(3A) If a lot is a battle-axe lot or other lot with an access handle, the area of the access handle and any right of carriageway is not to be included in calculating the lot size.

(4) This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme.

11. Clause 4.1A is in the following form:

4.1A   Minimum lot sizes for dual occupancies and multi dwelling housing

(1)  The objective of this clause is to achieve planned residential density in certain zones.

(2)  Development consent may be granted for development for the purpose of a dual occupancy on a lot that is land identified in Column 1 of the Table to this subclause if the area of the lot is equal to or greater than the area shown opposite that land in Column 2 of that Table.

Column 1	Column 2
Land identified as “G” on the Lot Size Map in either Zone R2 Low Density Residential or Zone R3 Medium Density Residential	630 square metres
Land identified as “K” on the Lot Size Map in Zone R2 Low Density Residential	1,000 square metres

(3)  Development consent may be granted for development on a lot identified as “K” on the Lot Size Map in Zone R2 Low Density Residential for the purpose of multi dwelling housing, if an area of at least 500 square metres is provided for each dwelling.

(4)  If a lot is a battle-axe lot or other lot with an access handle, the area of the access handle and any right of carriageway is not to be included in calculating the lot size.

12. The site is a lot identified as “K” on the Lot Size Map and accordingly, pursuant to the provisions of Clause 4.1A(3), an area of at least 500 square metres is required for each dwelling. The site does not comply with that requirement as its area is 923.2sqm, slightly less than is required for a dual occupancy development. The area available for each dwelling is 307.7sqm.

13. Area K applies to the area on the western side of Johnstone Street between Henry Lawson Drive and Evans Street to Salt Pan Creek and extends along the foreshore in a southerly direction to encompass both sides of Johnstone Street south of Evans Street and continues along the foreshore to Lugarno.

14. Clause 4.6 of the LEP provides for exceptions to development standards and the application relies on a written objection lodged under those provisions.

15. Other development standards that apply to the site are 4.3 Height of buildings (9m maximum) and 4.4 Floor space ratio (FSR)(0.6:1 maximum). The development complies with those standards.

16. The site is in a foreshore scenic protection area (FSPA) and the provisions of clause 6.4 apply as follows:

6.4 Foreshore scenic protection area

(1) The objectives of this clause are:

(a) to recognise, protect and enhance the natural, visual, environmental and heritage qualities of the scenic areas of Hurstville and the Georges River,

(b) to protect significant views to and from the Georges River,

(c) to reinforce the dominance of landscape over built form.

(2) This clause applies to land identified as “Foreshore scenic protection area” on the Foreshore Scenic Protection Area Map.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered how the development would:

(a) affect the natural environment, including topography, rock formations, canopy vegetation or other significant vegetation, and

(b) affect the visual environment, including the views to and from the Georges River, foreshore reserves, residential areas and public places, and

(c) affect the environmental heritage of Hurstville, and

(d) contribute to the scenic qualities of the residential areas and the Georges River by maintaining the dominance of landscape over built form.

17. Development Control Plan No. 1 – Hurstville LGA Wide (DCP 1) (DCP) applies to the site. Relevant sections are 1 – Introduction; 2.2 Neighbour Notification and Advertising of Development Applications; 3.1 Car Parking; 3.4 Crime Prevention Through Environmental Design; 3.5 Energy Efficiency; 3.7 Drainage and On-Site Detention Requirements; 3.9 Waste Management and 4.3 Multiple Dwellings and Residential Flat Buildings.

18. Clause 4.3.2.1i(a) Residential densities states:

Residential density controls apply to land zoned R2 Low Density Residential under Hurstville LEP 2012. Land zoned R2 Low Density Residential is shown on the Land Zoning Map of Hurstville LEP 2012. This density control is expressed as the amount of site area required for each dwelling regardless of its size or the number of bedrooms provided.

19. Setbacks are determined under clause 4.3.2.5 with a minimum of 4.5m required however are to be determined by the existing streetscape and general building alignments.

The issues

20. The contentions in the case are that the development does not comply with the development standards for multi dwelling housing and minimum lot size for strata subdivisions and that the written request pursuant to clause 4.6 does not satisfactorily demonstrate those matters listed in that clause in terms of the former and that no such objection was submitted in terms of the latter. Contentions 3 (streetscape and setbacks); 5 (Natural Surveillance) have been considered by the experts and the council agrees are capable of resolution through conditions of consent. Contention 4 (Landscaping) was deleted in the amended Statement of Facts and Contentions that relate to the amended plans and those plans are now consistent with the landscape plan so contention 6 is resolved.

21. Contention 7, that the development is not in the public interest, is pressed by the council.

The clause 4.6 written request

22. Mr Black prepared the written request to vary the development standard in clause 4.1A(3) lodged with the original application. That request is found behind Tab 6 in the council’s bundle of documents, Exhibit 3. A supplementary request was included with the s82A review application authored by Mr S Stavis and is found behind Tab 16 of Exhibit 3. Mr Stavis did not participate in the hearing.

23. A further written request was prepared by Mr Black in response to the plans before the Court and this is found as Annexure A to the Joint Planning Report, Exhibit 4. That request notes that the site area is 923.2sqm and therefore each dwelling will be provided with an area of 307.7sqm, a variation of 192.3sqm per dwelling or 38.4% of the control of 500sqm.

24. The written request has been prepared following the guidance of Preston CJ in Wehbe v Pittwater Council [2007] NSW LEC 827 with Mr Black stating that the request “seeks to demonstrate that compliance is unreasonable and unnecessary in accordance with points 1 and 5 above” (those five points summarising the tests in Wehbe). He cites the only objective to the development standard, that being “to achieve planned residential density in certain zones”.

25. Mr Black says planned residential density is taken to relate to population density as well as built form. He considers population density that could result on the site and says it is likely that a dual occupancy development would be approved as this would require a relatively minor variation of 7.6%, as a site area per dwelling of 461.6sqm would result. He notes there are a number of dual occupancies within relative close proximity to the site on similar size lots. He notes the FSR provides for 0.6:1 maximum for both dual occupancy and multi dwelling house development with a maximum gross floor area (GFA) of 553.92 permitted in accordance with that development standard. In terms of dual occupancy development he says each dwelling would have a maximum permitted size of 276.96sqm and is likely to contain at least 5 bedrooms, thereby providing accommodation for at least 6 people within a single family. Over two dwellings, it is conceivable that, on average, 12 people could occupy the site.

26. In comparison, Mr Black says the proposed 3 x 4 bedroom dwellings, with the FSR of 0.5:1 are likely to house a family of 5 people, resulting in a total of 15 people occupying the site. This represents an additional 3 people on the site in comparison to a dual occupancy development. He concludes that such a variation is minor and in a strategic planning sense, could not be construed as being beyond the planned residential density.

27. Mr Black says that a boarding house development could be achieved on the site under the provisions of State Environmental Planning Policy Affordable Rental Housing 2009 (SEPPARH) with a maximum FSR of 0.6:1 which would set a benchmark for acceptable or planned residential density, and is likely to produce a population on the site that far exceeds the proposed development, citing a likely development of 15 double rooms.

28. Mr Black says the built form proposed has some distinct advantages over dual occupancy development, including

• Greater side and boundary setbacks, which will result in greater separation to adjoining properties and considerable amenity benefits to the property to the south in terms of increased solar access;

• All parking will be provided within the site and not visible from the public domain, whereas, by comparison a dual occupancy is only required to provide 1 garage space with an additional space permitted within the front setback area; and

• Improved streetscape presentation with built form that extends for only 50% of the site frontage (dual occupancy would occupy approximately 80% of the site frontage) thereby allowing increased opportunities for landscaping and establishment of native trees.

29. Mr Black also considers the objectives of the FSPA and concludes that objectives a and b are not relevant to the application and that the proposal does not result in a built form which is dominant over landscaped area because the development proposes a landscaped area of 25% as required under the DCP with a 2m minimum dimension and other areas available for planting that are less than 2m.

30. He says the site is on the cusp of the FSPA boundary, a boundary that follows the street pattern and does not reflect the visual catchment of the Georges River, which would be more suitable defined by topography than street boundaries. He says the boundary of the FSPA does not reflect the presence of natural or environmental features or heritage qualities. In applying the objectives for development in the FSPA, the site does not contain assets or features typical of a ‘foreshore’ site and is not within the visual catchment of the Georges River. He concludes the site is not suitably characterised as being part of the FSPA.

31. For these reasons he concludes that the development proposed is an appropriate form of development that satisfies clause 4.6(3)(a) of the LEP and insistence on strict compliance would be unreasonable and unnecessary in the circumstances.

32. In accordance with the provisions of clause 4.6(4) of the LEP, Mr Black considered the zone objectives and says the proposal is for a low density residential development with a gross floor area significantly less than the maximum prescribed by the LEP. The type of housing contributes to the overall diversity of housing in the locality and is within an accessible area as defined in SEPPARH.

33. Despite the non-compliance with the development standard Mr Black says the proposal has no detrimental impacts to the amenity of neighbours as there will be no significant overshadowing, or loss of visual or aural privacy. The new dwellings provide a high level of amenity for future occupants with secured garages, large north facing courtyards, quality landscaping and dwellings designed to achieve internal privacy and efficient and practical layout of internal spaces. Dwellings will be provided in a landscape setting with overall landscaped area exceeding the minimum DCP requirements. A variety of trees and shrubs will be planted throughout the site, which will contribute the amenity and visual quality of the site as viewed from the street and surrounding dwellings. There are multi dwelling housing developments in close proximity to the site and the built form will be consistent with these developments as well as dual occupancy developments within the neighbourhood.

34. Mr Black says there is no planning purpose to be served by preventing the development of the site for multi dwelling housing containing three dwellings, given that it is a form of housing that is permissible within the zone and the proposed GFA is less than a potential dual occupancy development on the site. The proposal also provides landscaping in accordance with the DCP requirements and will achieve superior streetscape presentation. He concludes the proposal meets the relevant objectives for development within Zone R2, compliance with the lot size requirement of clause 4.1A(3) of the LEP is unnecessary in the circumstances of this case as the development meets the objectives of that standard, objectives for development within the FSPA and the zone objectives. Therefore, strict compliance with that standard would be unreasonable.

35. Additionally, Mr Black says the public benefits arising from the proposal include the provision of a reasonable development form on the site that is within expected limits and the introduction of additional housing within a highly accessible and desirable location, provides sufficient environmental planning grounds to justify an exception to the development standard. For these reasons he says the requirements of clause 4.6 are satisfied.

The evidence

36. The hearing commenced on site and whilst the council had received objections to the proposal, no residents attended the view.

37. Expert evidence was heard from Mr B Black for the applicant and Mr N Kennan for the council. They agree that the site is not visible from the foreshore and conversely, the foreshore is not visible from the site. They also agree that a dual occupancy on the site would most likely achieve development consent as the required variation to the 1000sqm minimum lot size development standard would be relatively small.

36. They agree that more recently constructed development in Johnstone Street has a front setback that ranges from 5.2m and 5.5m and on that basis, a 5.5m setback to the proposed development would be appropriate. Draft consent conditions have been prepared that reflect this requirement and a requirement to provide a separate pedestrian entry to the front dwelling to accord with DCP requirements. They also agree that additional tree planting and landscaping should be incorporated and those matters address the design contentions.

37. In relation to the clause 4.6 written request, Mr Black, in the Joint Report, repeats his argument contained in that request. He says the underlying purpose of the dwelling per site area control is unclear and this is because planned residential density can relate to a number of factors including population density and building density, the term not being defined in the LEP. In a town planning sense, he says density typically relates to building area and size of buildings. On that basis and given the extensiveness of the LEP and DCP controls that control built form, it is reasonable to conclude that the subject development standard primarily relates to population density. There is however a direct connection to building size as this will dictate population, but for the purposes of the clause 4.6 variation, significant weight has to be given to the standard seeking to control population.

38. Because the eastern side of Johnstone Street is not subject to the control and development has been approved on that side of the street at a density of 1 dwelling per 245sqm of site area, Mr Black says there is no fundamental difference between dwellings that are located on the eastern or western side of the street. The characteristics and site constraints are no different. He says that if the Court was to take the view that planned density relates solely to the number of dwellings on a lot, there is sufficient precedence set by the recent approval to support the proposed development and given proximity to the subject site, it cannot be said that the control is seeking to achieve a greater planning purpose.

39. In addition, on the basis that the experts agree that a dual occupancy development is a form of development that may be approved on the site with Torrens Title subdivision (accepting the necessity for a clause 4.6 objection) Mr Black says a secondary dwelling could be constructed in the rear yard pursuant to the provisions of SEPPARH. This would create a total of 4 dwellings on the original lots, one more than the current proposal and demonstrates that the intention of the site area per dwelling standard is weak and does not have any significant planning purpose. Similarly, because the site is in accessible area, he says an infill affordable housing development pursuant to SEPPARH could also yield townhouse development containing at least three dwellings subject to satisfying the character test under that policy.

40. Mr Kennan says the objectives of clause 4.6(1) are relevant in the determination of whether support should be given to the clause 4.6 objection to the 500sqm minimum lot size development standard for multi dwelling housing. He says that it is reasonable and necessary to strictly apply the 500sqm standard in the circumstances of the case as to not do so would:

• Not achieve the planned residential density for the R2 Low Density Residential zone in accordance with the objective of the development standard;

• While providing for the housing needs of the community, would not do so within the established and planned low density residential environment;

• Would not encourage development of the site which does not compromise the amenity of the surrounding area;

• Would not ensure that a high level of residential amenity is achieved and maintained;

• Would not encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment; and

• Would not “achieve a better outcome” than a development which conforms with the development standard which is an objective of clause 4.6 of the LEP.

43. Mr Kennan is critical of the approach taken by Mr Black in his written request. He says that it is, in the large part, based on a discussion of dwelling sizes, occupancy rates and floor space ratio and, in particular, provides a comparison between a dual occupancy development and the proposed development. Achieving a certain building size, FSR and hence, a maximum occupancy rate is not the test of whether a development meets the objective of the development standard. The planned residential density for multi dwelling housing is clearly established in the LEP as being based on an area of 500sqm per dwelling regardless of subsequent dwelling size, occupancy rates or floor space ratio. It is clearly available to an applicant to maximise dwelling size, FSR and hence, occupancy rate while still meeting the 500sqm minimum lot size for multi dwelling housing. The fact that a lesser FSR than the maximum permitted is proposed is not relevant to the determination of the request.

44. He says that a comparison of dwelling size, occupancy rates and FSR of both the proposed development and a dual occupancy is also not a relevant consideration as both forms of development are prohibited on the site without concurrence to a clause 4.6 variation to the minimum 1,000sqm lots size in the case of a dual occupancy development and the 500sqm minimum lot size in the case of multi dwelling housing.

45. Mr Kennan considers the comparison with a boarding house but says it would fail to meet the character test provided for in Clause 30A of SEPPARH and would be refused consent.

46. In regard to amenity, Mr Kennan says that the impacts of the proposed development are due to the non-compliance with the development standards that add to bulk and scale that is not representative of development in the FSPA.

47. He says that the applicant has failed to demonstrate any environmental planning reason to justify contravention of the 500sqm development standard. He has regard to the general nature of the objection and the circumstances applied in Wehbe and says the arguments are not particular to this parcel of land and the same argument could be put forward for other similar parcels of land in the FSPA and indeed in other similarly zoned land.

48. Mr Black disagrees and says that the objective of clause 4.6 is to encourage better planning outcomes by allowing flexibility in the application of development standards but is not in itself an objective of a development standard. He maintains that it has been demonstrated that the proposal will relate well to the character of the area, is a permissible development form that achieves a high level of numerical compliance and therefore it cannot be construed that the proposal will result in departure from the planned residential density in the zone. He says the standard is generic in nature, is applied in an ad hoc manner by following Johnstone Street (and no natural geographical boundary) and does not relate to the character of the locality or to the objectives of the zone, which seek a range of housing types.

49. In addition to the non-compliance with clause 4.1A, the council also contends that consent cannot be granted to the proposed strata subdivision as the applicant has failed to lodge a written request pursuant to clause 4.6 of the LEP, to vary the minimum lot size for subdivision found at clause 4.1. The council says that each strata lot must be a minimum of 550sqm in accordance with the lot size map. Whilst no plan of subdivision has been provided, the council says that the provisions of clause 4.1(4) do not apply as the application is not for the subdivision of individual lots in a strata plan but rather it is the subdivision of one Torrens Title lot into strata lots.

Conclusion and findings

50. For consent to be granted, the Court must be satisfied that the written request in relation to the development standard for minimum lot sizes for multi dwelling housing satisfactorily addresses those matters listed in clause 4.6. Clause 4.6 is in the following terms:

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

(b) the concurrence of the Director-General has been obtained.

(5) In deciding whether to grant concurrence, the Director-General must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.

51. It is therefore, firstly, necessary to explore whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

52. Secondly, there must be sufficient environmental planning grounds to justify contravening the development standard.

53. Thirdly, I must be satisfied the proposed development is in the public interest because it is consistent with the objectives of the development standard and the objectives of the R3 zone (and concurrence of the Director-General has been obtained).

54. Pain J in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 considered these provisions and says at [34]:

There is every reason to construe cl 4.6(4)(a)(i) as if it has more work to do than subclause (4)(a)(ii), not least because “and” is between the two subclauses…….The use of “and” suggests the requirements in subclauses (4)(a)(i) and (ii) are separate requirements.

55. It is therefore necessary to be satisfied that both compliance with the development standard is unreasonable and unnecessary AND of consistency with the objectives of the development standard and the zone objectives. It is not sufficient to find that because consistency with the objectives is achieved, compliance with the development standard is unreasonable and unnecessary, further consideration of the latter is required.

56. I turn to the objectives of the development standard. There is only one objective and that is to achieve planned residential density in certain zones. The experts provided a range of opinions on whether this objective is achieved, these being in terms of built form, population density and a comparison of the proposal with other forms of development that may or may not occur on the site. What is agreed is that the standard applies to Area K and the R2 zone in which the site is located.

57. I find the provisions of the DCP inform the intent of the clause. In particular, Clause 4.3.2.1i(a) specifically addressed the density controls and states that the density control is expressed as the amount of site area required for each dwelling regardless of its size or the number of bedrooms provided. This is consistent with Mr Kennan’s evidence.

58. For that reason, I consider that there is no need to consider FSR, likely occupancy or built form or any hypothetical scenario of alternate development that may occur under the provisions of SEPPARH. The development standard seeks to control the number of dwellings that can be constructed on the site. The fact that one of the five objectives for the development standard for FSR makes reference to the term development density, that does not of itself mean that the site area control is to be considered in conjunction with the FSR control. Separate consideration is required.

59. The lot size map designates the site in Area K and that area has a planned density, for subdivision of the 550sqm or, for dual occupancy, a site area of 1,000sqm (equates to one dwelling per 500sqm site area) and for multi dwelling housing a density of 1 dwelling per 500sqm.

60. In numerical terms, a total of 1.846 dwelling could be constructed on the site in accordance with the provisions of clause 4.1A(3). That is the planned density for the site. Whilst it may be appropriate to provide two dwelling on the site and still achieve the density planned, I do not consider that three dwellings on the site accords to the density that is envisaged under the development standard. That would be an increase in density of over 50%, well above the planned density. For three dwellings, a site area of 1,500sqm would be required.

61. The LEP establishes the planned density. I do not accept the submissions by the applicant that because other forms of development may be permitted on the site under SEPPARH that this is a matter that increases the planned density for the site.

62. For these reasons, I am not satisfied that the proposal is consistent with the objective of the development standard.

63. In terms of the zone objectives, I prefer the evidence of Mr Kennan and agree that whilst the proposal would provide for the housing needs of the community, it does not do so within the established and planned low density residential environment for this part of Johnstone Street. I also do not consider that even with additional planting as agreed necessary by the planning experts, the development will enhance landscaping as a major element in the residential environment. The landscaping proposed is the minimum required under the DCP and the building footprint restricts the areas where major tree planting can occur. For these reasons, I consider the development would compromise the amenity of the surrounding area and not be consistent with the low density character envisaged in Area K. Accordingly, the zone objectives are not met.

64. It is also necessary to be satisfied that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. Mr Black’s reasoning that because the site is on the cusp of the FSPA boundary, a boundary he says does not reflect the presence of natural or environmental features or heritage qualities and is not within the visual catchment of the Georges River it should not be characterised as being part of the FSPA. For these reasons he says compliance with the development standard is unreasonable and unnecessary. I do not agree. Area K, when viewed as a whole encompasses an area that extends at least 200m from Salt Pan Creek and the Georges River. It is a consistent area that extends at least 200m from the water and whilst it is defined by street boundaries rather than natural features, there are many other lots within Area K that would also not be visible from a waterway. I am not satisfied that the reasoning is particular to the circumstances of the proposed development on the site and therefore I am not satisfied that the written request from the applicant justifies the contravention of the development standard.

65. Similarly, the environmental planning grounds proffered by Mr Black at [35] are not particular to the site and are not sufficient to justify contravening the development standards. It would be expected that development in accordance with the planned density that is to occur within the area would introduce additional housing in this accessible area. There is nothing exceptional in regard to the site.

66. For these reasons, I am not satisfied that it is appropriate to vary the development standard for minimum lot size for multi dwelling housing in clause 4.1A(3) of the LEP and the application must fail.

67. It is therefore not necessary to determine whether the provisions of clause 4.1 apply to the proposed strata subdivision or consider the merits of the application.

68. The Orders of the Court are:

1. The appeal is dismissed.

2. Development Application No 2014/0140 for demolition of an existing dwelling house and construction a multi dwelling housing development containing three dwellings and strata subdivision at No 51 Johnstone Street, Peakhurst is refused consent.

3. The exhibits, other than exhibits A, B, C, D and 1, are returned.

_______________

Sue Morris

Commissioner of the Court

Decision last updated: 30 June 2015