Greenpark Projects 2 Pty Ltd v Canterbury Bankstown Council

[2017] NSWLEC 1003

Land and Environment Court

New South Wales

Medium Neutral Citation:	Greenpark Projects 2 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1003
Hearing dates:	22 December 2016
Date of orders:	06 January 2017
Decision date:	06 January 2017
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: minimum lot size for dual occupancy development and subdivision
Legislation Cited:	Land and Environment Court Act 1979; Canterbury Local Environmental Plan 2012
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827
Texts Cited:	Canterbury Development Control Plan 2012
Category:	Principal judgment
Parties:	Greenpark Projects 2 Pty Ltd (Applicant)   Canterbury Bankstown Council (Respondent)
Representation:	Counsel: Mr P Clay (Applicant)   Solicitors: Mr M Mantei Planning Law Solutions (Applicant) Mr A Seton Marsdens Law Group (Respondent)
File Number(s):	285828/2016

Judgment

1. Greenpark Projects 2 Pty Ltd (Greenpark) lodged Development Application No 233/2016 with Canterbury Bankstown Council on 1 June 2016 seeking consent to demolish existing structures, construct an attached dual occupancy and Torrens Title subdivision of the land into two lots. The application applies to land known as No115 Burwood Road, Belfield.

2. The council had not determined the application within the prescribed period and Greenpark is appealing its deemed refusal.

The site and its context

3. The site comprises Lot 51 in DP 13474 and is located on the southern side of Burwood Road between Bruce Avenue and Burnham Street. It has a frontage of 15.24m, side boundaries of 30.48m (east) and 45.72m (west) and rear boundary of 21.54m resulting in a site area of 580.7m2. The rear boundary is angled to the side boundaries resulting in a wedge shaped rear yard area.

4. Development on this side of Burwood Road comprises single storey detached dwelling houses with a “corner shop” style development sited at the corner of Burwood Road and Burnham Street. Development in the vicinity of the site primarily comprises detached single and two storey dwelling houses with a dual occupancy development adjoining the rear south-eastern boundary (70 and 72 Bruce Avenue).

Background and the proposal

5. The application seeks to demolish the existing dwelling house and associated outbuildings and construct an attached dual occupancy dwelling with Torrens title subdivision. Each dwelling would contain the following:

• Ground floor kitchen, living, dining, study, bathroom and outdoor alfresco dining area;

• 3 bedrooms and 2 bathrooms on the first floor;

• Private open space at the rear of the site;

• Single garage plus additional off street parking within the driveway with access from Burwood Road.

6. The appeal was subject to mandatory conciliation during the morning of the hearing in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i). The applicant did however prepare amended sketch plans that reflected discussions in relation to a number of the contentions in the case. Those plans, Exhibit A, provide for additional setbacks to Burwood Road and reduce the bulk of the rear of each dwelling. Consequential changes to the internal layout of the dwellings arise however the amendments are agreed to be minor and reduce the floor space of the development.

7. The council advises that if the changes detailed in the sketch plans were made contentions 3-7 would be satisfactorily addressed. The applicant agreed that if the Court found in favour of the application that it would prepare proper plans that reflect the changes noted on the plans. For this reason the parties agreed that I should deliver findings in relation to the remaining contentions in the case.

8. Those contentions are that consent should be refused because the development does not comply with the development standards for minimum lot size for dual occupancy development and the resultant subdivision would not comply with the development standard for subdivision of dual occupancy development. The council contends the objections made to those development standards are not well founded.

The planning controls

9. The site is zoned R3 Medium Density Residential pursuant to the provisions of Canterbury Local Environmental Plan 2012 (LEP).

10. Clause 2.3(2) requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. the objectives of the R3 zone 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.

11. Part 4 of the LEP contains Principal development standards with clauses 4.1A and 4.1B relevant to the application. Those clauses are in the following form:

4.1A Minimum lot sizes for dual occupancies and dwelling houses in certain residential zones

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

(2) This clause applies to land in the following zones:

(a) Zone R2 Low Density Residential,

(b) Zone R3 Medium Density Residential,

(c) Zone R4 High Density Residential.

(3) Development consent must not be granted to development for the    purpose of a dual occupancy on land to which this clause applies    unless the area of the lot is at least 600 square metres.

(4) If a lot on land to which this clause applies is a battle-axe lot or other lot    with an access handle, development consent must not be granted to    development for the purpose of a dwelling house on that lot unless the    area of the lot is at least 600 square metres.

4.1B Minimum subdivision lot size for dual occupancies

(1) The objective of this clause is to ensure that appropriate minimum lots sizes are provided for the subdivision of land for dual occupancies.

(2) Despite clauses 4.1 and 4.1A, development consent may be granted to a development application for the subdivision of land if:

(a) there is an existing dual occupancy that was lawfully erected         under an environmental planning instrument on the land, or

(b) the application also provides for the erection of a dual occupancy on the land.

(3) Development consent may be granted to the subdivision of land under    this clause only if:

(a) the lot size of each resulting lot will be at least 300 square metres,    and

(b) there will be one dwelling on each resulting lot.

12. Clause 4.4 is also relevant and provides for a maximum floor space ratio of 0.5:1. The parties agree that the amended plans proposed comply with that development standard.

13. Canterbury Development Control Plan 2012 (DCP) applies to the site with Parts 2 (Residential Neighbourhoods) and 6 (Generic Controls) particularly relevant.

14. Clause 2.1.2 of the DCP applies to Site Requirements and, for dual occupancy development requires a site width of 15.24m with each lot in a completed dual occupancy development having a minimum 7.5m width. The application satisfies those controls. Other controls met through the application apply to building height, building depth/footprint, side boundary setbacks and car parking.

15. Controls not met are the front setback, which due to Burwood Road being classified under the DCP as a major road, a 9m setback is required and a minimum setback for the northern dwelling of 8.6m is proposed under the Exhibit A plans. Similarly, the northern dwelling does not provide for the necessary 6m setback to the rear boundary. That setback varies from 1.97m to the closest point of the alfresco area to compliant setbacks further to the south of the site due to the angle of the rear boundary.

The issues

16. The site area is agreed to be 580.7m2 and therefore less than the 600m2 required for dual occupancy development pursuant to clause 4.1A of the LEP. The application proposes subdivision of the site so that each dwelling as proposed would be contained on its own allotment. Torrens title subdivision is proposed. The proposed northern lot (No 115) would contain dwelling A and have a frontage of 7.62m and site area of 262.347m2. The southern lot (No 115A) would contain dwelling B and also have a frontage of 7.62m and site area of 318.297m2. The former does not meet the minimum lot size prescribed in clause 4.1B of the LEP however the latter exceeds that 300m2 development standard.

17. Mr Black says the site has an area of 580.7m2 which is 19.3m2 less than the minimum required and results in a variation of 3.2%. In relation to the future subdivision of the dual occupancy, Lots 1 and 2 would have a site area of 262.34m2 and 318.7m2 respectively. Proposed Lot 1 will therefore not meet the required minimum lot size of 300m2 with a proposed variation of 37.66m2 (12.6% variation). Proposed Lot 2 exceeds the minimum lot size requirement by 18.7m2 (a 6.2% increase).

18. The contentions remaining following preparation of amended sketch plans are whether it is appropriate to allow a development that does not satisfy the development standards under clauses 4.1A and 4.1B of the LEP.

The evidence

19. Expert town planning evidence was heard from Mr B Black for the applicant and Mr A Hargreaves for the council.

20. They agree that the proposed amendments to the plans as detailed in orange markings in Exhibit A address the contentions that relate to setbacks, overdevelopment, built form and building design, amenity and entry point.

21. This agreement addresses all of the merit based issues associated with the application.

22. They disagree as to whether the site is suitable for the proposed development due to the area being non-compliant with the relevant development standard and whether the subdivision is appropriate as it would result in one lot which is less than provided for under the LEP.

23. That is a jurisdictional test that must be passed for consent to be granted regardless of the other contentions having been satisfied.

The written objection

24. Mr Black prepared a written objection to the development standards contained in clauses 4.1A and 4.1B of the LEP. That objection is Exhibit C.

25. Clause 4.6 of the LEP is in the following form:

(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 Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Secretary 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        Secretary before granting concurrence…….

26. This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that 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. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.

27. Mr Black’s written objection is styled using the guidance of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827. That decision sets out five ways of demonstrating that compliance with a development standard is unreasonable or unnecessary. They are:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose is not relevant to the development with the consequence that compliance in unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable;

4. the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consent departing from the standard;

5. the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary is applied to the land.

28. Mr Black relies on the first test however also argues the third, that the underlying objective or purpose would be thwarted if compliance with the development standards was required. The objectives of the R3 zone are listed at [10] with the objectives of the development standards for minimum lot sizes at [11].

29. The written request addresses the provisions of clauses 4.1A and 4.1B of the LEP concurrently. Mr Black argues that strict compliance with both development standards would inevitably have one or more of the following consequences:

1. Loss of additional housing within a highly sort (sic) after locality. This site has excellent access to public transport (bus and train services), educational establishments and employment. In addition, there is currently strong demand from ‘downsizers’ and small families for medium sized dwellings within the locality;

2. Not achieve the LEP objectives for the zone which seek to provide for the housing needs of the community within a medium density residential environment. The proposed dual occupancy is a form of medium density housing that is consistent with the zone objectives whilst avoiding unreasonable and adverse impacts on surrounding sites and the streetscape; and

3. Not encourage the replacement of older housing stock that has substandard accommodation, poor energy and water efficiency and large gardens that require frequent maintenance.

30. He says that each of these consequences carries a social, economic and environmental cost such that strict compliance with the lot size standard would lead to a suboptimal environmental planning outcome ( in comparison with the proposed development).

31. In relation to the R3 zone objective of providing housing that meets the needs of the community within a medium density environment, Mr Black says this objective would be thwarted as an opportunity would be lost in meeting the objective and undermined as a replacement of similar older housing stock within the locality would not be encouraged. He also says the aim of the LEP as set out in clause 1.2(2)(b) to promote a variety of housing types to meet population demand would be undermined as would the objective of clause 4.1A of achieving planned residential density in certain residential zones. The DCP objective that “all neighbourhoods are safe and comfortable, and accommodate a mix of households in a diversity of well-designed dwellings, which are relative to the density and function of each neighbourhood” would not be achieved. Finally he says a burden would be imposed on the community because of the loss of new dwellings, reduced access of potential homebuyers/renters to an area that supports public transport patronage, walking and cycling, and these burdens would be grossly disproportionate to the consequences attributable to the proposed development and deficient lot size.

32. Mr Black concludes that the proposed variation to the lot size requirements will facilitate a development outcome that is consistent with the objectives of the development within the locality, as prescribed by the LEP and DCP with the proposal meeting the large majority of controls so that strict compliance would be unreasonable and unnecessary in the circumstances of the case. In addition, the proposal will have negligible adverse environmental impacts, will provide for additional housing within a highly suitable location and will assist council in meeting the changing housing need of the community.

33. In relation to environmental planning grounds that justify contravening the development standards, Mr Black says the site is in an area with many narrow lot housing sites and the proposed dwelling is consistent with the height and FSR controls under the LEP and the density and siting controls under the DCP. The proposal will contribute to a greater diversity of housing type within a locality which is close to employment, leisure and other opportunities.

34. He says that environmental planning grounds also need to be balanced with the burden that strict compliance places on the site and whether compliance will result in a better or neutral outcome. He says the development has been designed to provide a high quality form with a design and layout that is suitable to the context of neighbouring buildings. The development of the site as a single dwelling would not result in a better outcome as opposed to the proposed development, in terms of relationship to the neighbouring properties or to the street and a more regular (rectangular) shaped rear boundary would achieve the minimum lot size requirements of the LEP but this would have no material streetscape, visual, privacy, view or solar benefits. Construction of a dual occupancy development can be undertaken without undermining the character and amenity of the area and a new dual occupancy development would be provided with high levels of resident amenity.

35. Mr Black’s assessment of the objectives of the development standard and zone objectives makes an incorrect reference to the objectives of clause 4.1A and repeats the objectives of clause 4.1B, that is the objective to ensure that appropriate minimum lots sizes are provided for the subdivision of land for dual occupancies. He says that notwithstanding the proposed shortfall in site area of proposed Lot 1, the proposed development is consistent with the objectives for minimum lot size. The shortfall in site area of 37.66m2 (12.6%) is a result of the angled rear boundary of the site, which will be imperceptible from the street, and the proposed development will be consistent with the size of many adjoining sites and recent dual occupancy developments that have occurred on sites of less than 600m2.

30. Mr Black says the width of the resultant lots will be 7.6m which is only marginally narrower than the existing lots with a width of approximately 10m and complies with the DCP control of 7.5m. He says the predominant subdivision pattern is varied with some narrower lots, interspersed with wider lots, and lots with angled or more regular shaped boundaries with a number of similar dual occupancy developments along Bruce Avenue, Burnham Avenue and Omaha Street that have similar lot widths and lot sized so the proposal will not look out of place having regard to the predominate subdivision pattern on the area and is not out of character He cites three existing dual occupancies on sites less than 600m2, two in Bruce Avenue (Nos 70 and 72 and 77 and 77A) and one in Omaha Street (Nos 63 and 63A).

31. He says the proposal does not result in any impacts upon the amenity of neighbouring properties as a result of the proposal falling short of the minimum lot size and the layout and design of the dwellings focuses all living areas to the ground floor with no overlooking from first floor level, thereby protecting neighbour’s privacy. The favourable north-south site orientation also means that there is shared overshadowing of neighbour’s living areas or open spaces throughout the morning and afternoon periods, emphasising the minimal impacts on the neighbouring properties. The proposal does not affect any natural or cultural features, including heritage items and does not result in the loss of any trees or views.

32. In reference to the three existing dual occupancies described above, Mr Black says that each of these lots has been developed with a two-storey dual occupancy and subsequently subdivided in strata title. Notwithstanding the minor shortfalls in site area at each of these properties the developments still achieve the planned residential density and do not look out of place as a result of the reduced site area. In his view the introduction of dual occupancy development is an appropriate manner in which to introduce additional housing within the medium density zone, as opposed to wide spread multi-dwelling housing development, which is also a permitted land use in the zone.

33. Mr Black concludes that there are a number of similar lot sizes in the locality including the development immediately to the rear of the site which do not meet the minimum requirement of 300m2 for both lots. Notwithstanding the shortfall for proposed Lot 1, it has been demonstrated through the dwelling design that the minimum lot size provided is appropriate for the dual occupancy proposed and therefore meets the objective of Clauses 4.1A and 4.1B of the LEP. The proposed development has compliant floor area and the extent of variation to the minimum lot size control could not be construed as forcing the planned residential density beyond intended strategic planning limits. The proposal meets all other density controls for the R3 zone in relation to FSR and building height, has compliant side boundary setbacks and a front setback that is consistent with the established street pattern (the Court notes the written request was prepared prior to the amendments to plans which increase that setback) and the scale and bulk of the proposed development is consistent with the existing and future desired character of the area.

34. With specific reference to the zone objectives, Mr Black says the proposal will replace an existing dwelling with two new architecturally designed family dwellings that will provide appropriate medium density residential accommodation meeting the zone objective of providing a variety of housing types, other than single detached dwelling which are predominant in the area. The proposal will not impact upon the provision of facilities or services to meet the day to day needs of residents and as such is consistent with the objectives of the R3 zone.

Conclusion and findings

41. It is common ground that the design, siting, scale and bulk of the building as detailed in the sketch plans, Exhibit A, are acceptable.

42. The matter that remains is whether it is appropriate to allow variation to the development standards for site area for dual occupancy development pursuant to clause 4.1A of the LEP and whether the resultant allotments to be created as the result of the subdivision of the site into two lots, each containing one of the dual occupancy dwellings, one being smaller than provided for under the development standard in clause 4.1B of the LEP should be allowed. The applicant relies on a written request prepared in accordance with the provisions of clause 4.6(3) of the LEP. Upholding that request is a precondition to a consent authority exercising the power to grant consent to the development and if I am not satisfied that the provisions of the clause are met, consent cannot be granted.

43. Having reviewed the written request, I am not satisfied that it has adequately addressed those matters detailed in clause 4.6(3). In particular, because the request relies on the first and third test in Wehbe in an attempt to demonstrate that compliance with the development standards is unreasonable and unnecessary and that the underlying objective or purpose would be defeated or thwarted if compliance was required, I consider the request fails to adequately assess the objectives of the development standards. In particular, the objectives of clause 4.1A are not adequately considered. There is only one objective to the development standard in that clause and that is to achieve planned residential density in certain residential zones. The clause applies to three zones including the R3 zone.

44. I do not consider the written request had adequately considered this objective and, in fact has incorrectly referenced it in Point 3 on page 5. Whilst there are broad comments in relation to issue of density, those comments go to the objectives of the zone rather than to the objectives of the development standard. There has been no assessment of what is the planned residential density for the R3 zone. There has been no consideration if the development as proposed would achieve that density or would in fact thwart the objective which may require a higher density development. Without a proper understanding of what the planned density for the site and the R3 zone generally is, it is not possible to conclude if the objectives of the standard are met.

45. The LEP calls for a minimum lot size for dual occupancy development of 600m2 and the written request fails to interrogate that density objective and in fact fails to assess what is the planned residential density for the site or the R3 zone as a whole.

46. I do not consider that because the design of the development satisfies the majority of the planning controls including FSR that this shows the planned density is met. Regardless of the area of the site, it is possible to design a building that could comply with the controls, it is a factor of the size of the dwelling proposed. Similarly, the absence of external impacts and the provision of good internal amenity do not justify variation of a development standard. These would be expected in any merit assessment of an application for residential development. Accordingly, I cannot be satisfied that the objective of the development standard is met and therefore it has not been demonstrated that the proposal would be in the public interest.

47. As I am not satisfied that the objectives of the development standard in clause 4.1A have been satisfactorily addressed, the application must fail.

48. The Orders of the Court are:

1. The appeal is dismissed.

2. Development Application No 233/2016 for demolition of existing structures, construction of an attached dual occupancy and Torrens Title subdivision of the land into two lots at No.115 Burwood Road, Belfield is refused consent.

3. The exhibits, other than exhibits A, B and 2, are returned.

_____________________

Sue Morris

Commissioner of the Court

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Decision last updated: 06 January 2017