Hamptons Property Services Pty Ltd v Canterbury-Bankstown Council

[2024] NSWLEC 1742

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hamptons Property Services Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1742

Hearing dates:

24 and 25 September 2024

Date of orders:

20 November 2024

Decision date:

20 November 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application DA-1124/2023 for demolition including tree removal and remediation of land, community title subdivision of land and construction of six dual occupancies, one dwelling house, ancillary driveway, car parking, stormwater infrastructure and landscaping works, and the dedication of land to Council for public open space, and further community title subdivision of 6 dual occupancies at Lot 1 in Deposited Plan 566982, known as 30 Trevenar Street, Ashbury subject to the conditions of consent in Annexure A.

(3) All exhibits are retained except Exhibit 5 which is to be returned to the Respondent.

Catchwords:

DEVELOPMENT APPEAL – community title subdivision – whether minimum lot frontage development standard – whether FSR development standard – whether min lot size development standard – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Community Land Development Act2021

Conveyancing Act 1919, s 88B

Local Government Act1993, s 49

Canterbury Bankstown Local Environmental Plan 2023, cll 4.1, 4.1AA, 4.1A, 4.2, 4.3, 4.4, 4.5, 4.6, 5.10, 5.21

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited:

Billgate Pty Limited v Woollahra Municipal Council And Anor [2005] NSWLEC 61

Dallad Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1673

Dallad Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1021

Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77

Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79

Parker Logan Pty Ltd v Woollahra Municipal Council [2015] NSWLEC 1458

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Purcell v Electricity Commission of NSW [1985] HCA 54; (1985) 60 ALR 652; (1985) 59 ALJR 689; (1985) 11 IR 105

STMRCF Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 111

Trevenar Pty Ltd v Canterbury Bankstown Council [2022] NSWLEC 1680

Texts Cited:

Canterbury-Bankstown Development Control Plan 2023

Category:

Principal judgment

Parties:

Hamptons Property Services Pty Ltd (Applicant)
ACN 141 622 433

Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
P Tomasetti (Applicant)
P Bambagiotti (Respondent)

Solicitors:
Corrs Chambers Westgarth (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2023/360433

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA-1124/2023 for the demolition of existing structures, tree removal and remediation works, construction of six dual occupancies and one dwelling house, civil works (southern driveway) and stormwater infrastructure, Torrens title subdivision into two lots with dedication of Lot 1 to Council to enable tea joining Peace Park to be extended and strata subdivision of Lot 2 into 8 lots comprising 1 community property and 7 community development lots being and subdivide the 6 dual occupancies into 12 community title lots (the Proposed Development) at 30 Trevenar Street, Ashbury NSW 2193 legally described as Lot 1 DP 566982 (the Site).

2. As at the conclusion of the hearing I set out the four step Proposed Development for which the Applicant seeks development consent, and the Court is tasked to determine by way of this Class 1 Appeal:

1. The first step is demolition, clearing and remediation described in the Annexure A conditions of consent as

“Subdivision Works Certificate to be obtained to enable demolition works and, if required in accordance with the Remediation Action Plan, remediation works, subdivision work and construction of critical infrastructure (private road & stormwater work) for the development.”

2. The second step is obtaining the Subdivision Certificate for the whole of the site (9-lot subdivision). This Subdivision is into 9 lots comprising lot 1 at 1,390.8m2 as Community Property, lots 2 to 8 as residential lots each with an area greater than 600m2 and dedication of Lot 9 at 831.5m2 (Panhandle):

1. Sheet 1 Location plan

2. Sheet 2 Detail Plan sheet 1 of 2 Plan of Subdivision of Lot 1 DP566982 refer to notation in box that reads “IT IS INTENDED TO DEDICATE LOT 9 TO THE PUBLIC AS A PUBLIC RESERVE IN ACCORDANCE WITH S 49 OF THE LOCAL GOVERNMENT ACT 1993”;

3. Sheet 3 Detail Plan sheet 2 of 2 Plan of Subdivision of Lot 1 DP566982 with the same notation regarding Lot 9.

4. Sheet 4 Community Property Plan

Fig 1: PROPOSED PLAN OF SUBDIVISION (9 lots) – Ex L Sheet 2

1. The third step is construction of dual occupancy buildings and single dwelling in accordance with architectural plans prepared by pbd architects DA 000 to DA 701 Rev F dated 6 May 2024 (Ex B at Tab 39). This step is comprised of obtaining the Construction Certificate prior to construction of the dwellings and the Occupation Certificate at completion of construction.

2. The fourth step is Community title subdivision of the dual occupancy lots (with the panhandle previously excised and transferred to the Respondent pursuant to s 49 of the Local Government Act 1993 (LGA) in accordance with Ex L) into individual allotments following which there will be 14 lots resulting in a dwelling on its own lot (Lot 4 as part of Stage 1 subdivision) and the areas of each of lots 2 to 14 (excluding lot 4 which was part of Stage 1) will be in excess of 300m2 and excising the panhandle future lot 15 in accordance with; Ex B, Tab 38 – Community Plan of Subdivision comprising of four sheets dated 25 September 2024 (provided to the Court at the end of the Applicant’s closing submissions).

Fig 2: PROPOSED PLAN OF SUBDIVISION (14 lots) – Ex B, Tab 38 Sheet 3

3. The parties rely on the evidence of experts in the Joint Expert Report (JER) filed 30 August 2024 prepared by Kristy Hodgkingson, Town Planner and Paul Buljevic, Architect for the Applicant, and Rebecca Englund, Town Planner and Francisco Mota, Urban Designer and Planner for the Respondent (Ex 2). The experts respond to the Contentions as per the Amended Statement of Facts and Contentions (ASOFAC) filed by the Respondent on 28 May 2024 (Ex 1). Following the orders of 24 September 2024, referred to below at [6], a Supplementary Joint Expert Report (SJER) filed 25 September 2024 (Ex N). The SJER considered the documents at Tab 13 of the Applicant’s Bundle being Ex L and listed at par 5 of the SJER. At par 7 of the SJER “KH has confirmed that the 9 Lot Community Title Subdivision Plans identified at Paragraph 5 are the plans that the Applicant relies upon for the preparation of this JER and that the sequence of development is in four stages.”

4. The Amended Statement of Facts and Contentions (ASOFAC) filed 20 May 2024 (Ex 1) provides the history of the Site and the previous decision of Trevenar Pty Ltd v Canterbury Bankstown Council [2022] NSWLEC 1680 (Trevenar). Trevenar dealt with a refusal of an earlier Development Application No. DA-709/2021 which proposed the subdivision of the existing site into seven Torrens title residential allotments along with construction of a driveway, on-site stormwater detention (OSD) and services (with registered covenants to benefit and burden lots in respect of the driveway, OSD and services). The reasons for refusal are found in Trevenar at paragraphs [34] – [68].

5. These proceedings seek a similar residential subdivision with some marked differences including seeking of consent for the construction of the dwellings as well as providing for a means to manage the OSD by way of community title in a sequence of development comprising 2 subdivisions.

6. The Applicant made an application to amend the Proposed Development on the first day of the hearing and the following Orders were made on 24 September 2024:

1. Exercising the courts power under s 39(2) of the Land and Environment Court Act 1979 the court exercises its discretion as consent authority pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 to approve the application by the Applicant to amend the development application by relying on the document appearing at Tab 13 comprising of 4 sheets and referred to as Amended Plan of Community Subdivision prepared by LTS dated 3 September 2024.

2. Direction to the four experts who prepared the Joint Expert Report, Ex 2 in the proceedings, to further confer and consider the document appearing at Tab 13 comprising of 4 sheets and referred to as Amended Plan of Community Subdivision prepared by LTS dated 3 September 2024 and prepare a Supplementary JER setting out any further comments or opinions by 9 am 25 September 2024

7. The document appearing at Tab 13 of the Applicants Bundle was tendered and marked Ex L and the SJER was tendered and marked Ex N.

8. This case is about whether the departures from applicable controls by the Proposed Development are significant and result in a gross overdevelopment of the Site. The Respondent, in closing, refers to the number of developments in terms of the application and the way it has been put since the Amended SOFAC was filed in May 2024 and compares it with the saying “trimming the foot to fit the shoe” and submits that “there are still a number of areas where we would say with great respect that the application is half-baked.” (Transcript 25 September 2024, p 53 at 15). The Respondent explains that the challenge for the court is the four step proposal for the development including a two-step subdivision which raises the question as to which of the provisions of the Canterbury Bankstown Local Environmental Plan 2023 (CBLEP) apply to the evaluation and assessment of the Proposed Development. Resolution of Contentions 1 and 2 of the ASOFAC require the provisions of minimum lot size for the subdivision to be ascertained in accordance with the proper characterisation of the development. As such the minimum lot size may be 600m2 if a dual occupancy subdivision (cl 4.1A(4), CBLEP) or 460m2 if a community title scheme subdivision (cl 4.1AA, CBLEP) or perhaps both if applied at each stage of the Proposed Development. Similar challenges are posed in relation to the maximum floor space ratio development standard. The experts do not agree and the parties did not grapple sufficiently with this to assist the Court. The earlier SOFAC (Ex K) was tendered by the Applicant and provided some assistance.

9. The Applicant’s case is that the Proposed Development will not result in a gross overdevelopment of the Site because it does not substantially depart from, and indeed complies, with the applicable controls and would:

1. Provide land uses that are permitted with development consent in the R2 zone;

2. Comply with the minimum lot size requirements for dwelling houses and dual occupancies;

3. Comply with the development standard for height of buildings; and

4. Comply with the development standard for floor space ratio. (Applicant Written Submissions para 113 to 115)

10. The Applicant submits that “all other environmental issues, with one exception, were resolved by the previous proceedings (see Trevenar at [19]). That is the Court was satisfied that the Site is suitable for remediation and residential use, there were no unacceptable traffic, access or traffic-related safety implication, and there was no concern that the development was located within the “Heritage Conservation Area.” The Applicant identifies the three outstanding issues in Trevenar to be as follows:

1. Parking on the private road, which could obstruct access and egress giving rise to a nuisance. The Court was satisfied that with no stopping zones on each side of the private road that matter was resolved (Trevenar at [33])

2. Ongoing management and maintenance of the OSD system (Trevenar at [36])

3. Council’s intention to rezone the Site to RE1 Public Recreation (Trevenar at [71]). On 29 August 2023, Council resolved in an Ordinary Meeting not to proceed with the acquisition of the Site and to withdraw the planning proposal.

11. The Applicant submits that that the issues the Court had on the last occasion in Trevenar, about coordinated efforts to keep the OSD facility clean and functioning have been adequately addressed and will be enforced by conditions of consent. Even though the Respondent does not raise any contention, I come back to stormwater management and the satisfaction of cl 5.21 of the CBLEP at [119].

12. The Applicant relies on par 19 of Trevenar which does not sit comfortably with the summary above. For completeness, I reproduce par 19 of Trevenar as follows:

“19. Before dealing with the contentions and the principle issues in dispute, I note the following summary from the Respondent’s opening statement that goes to the satisfaction of jurisdictional prerequisites and other agreed or resolved merit matters:

Firstly, there is no contention raised regarding contamination of land in the context of s 4.6 of the State Environmental Plan (Hazards and Resilience) 2021 where the Applicant has filed a Detailed Site Investigation Report (Tab 9, Ex C) and a Remediation Action Plan (Tab 10, Ex C). I am satisfied that any contamination risk is relatively low and that the Site is suitable for remediation for residential use.

Similarly, there is no contention raised in relation to the State Environmental Planning Policy (Infrastructure) 2021 s 2.119 where the Applicant has filed a Traffic Assessment Report prepared by Terraffic Pty Ltd dated 10 June 2022 (Tab 14, Ex C) relating to the frontage of the Site to King Street, being a classified road. The Traffic Assessment Report concludes at page 17 that “in the circumstances, it can be concluded that the proposed development has no unacceptable traffic, access or safety implications.”

The Respondent does not raise any contention in relation to compliance with the minimum subdivision lot size of 460m2 (cl 4.1, CLEP) or floor space ratio (cl 4.4, CLEP).

In relation to Heritage, the Site is located within the Ashbury Heritage Conservation Area and the Court is required to consider cl 5.10(5)(b) of the CLEP. The Applicant has provided a Heritage Impact Statement (HIS) (Tab 9, Ex B) and the Respondent does not raise any contention in relation to heritage conservation. I note that the HIS concludes at page 10 that there is no substantive impact and a conservation management plan is not warranted.

Clause 6.1 of the CLEP deals with acid sulfate soils to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage. The Respondent submits that the Site is outside of the area of concern for acid sulfate soils and raises no contention for acid sulfates (Transcript 17 August 2022, page 14 at [15]).”

13. The Respondent does not raise any contention in relation to contamination of the Site however, the objectors do and the contaminated status of the Site is also a matter which is a jurisdictional prerequisite to be satisfied prior to any grant of consent. In satisfaction of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) the Applicant relies on the following:

1. Preliminary Site Investigation (Tab 27, Class 1)

2. Remediation Action Plan (RAP) (Tab 28, Class 1) to remove patches of contamination, not of a chemical contamination but isolated patches of debris.

3. Harwood Environmental Consultants peer review (Tab 29, Class 1) of the documents listed in blue text on p 1 being:

1. Detailed Site Investigation

2. Ground gas risk assessment

3. RAP

14. Accordingly, I find that the terms of s 4.6 of the Resilience and Hazards SEPP are satisfied because I have considered whether the land is contaminated, and am satisfied that the land will be suitable, after remediation, for the purpose for which the development is proposed to be carried out, and that the land will be remediated before the land is used for that purpose.

15. No issue is raised by the Respondent regarding traffic impacts and the consultants confirmed that the road system was adequate for the Proposed Development, that there would be no unacceptable effect on the road network and that there is adequate manoeuvring in the 5.5m wide private road (Traffic Impact Assessment Report Tab 33). An objector raised concerns about noise and traffic during construction which is addressed by the Acoustic Dynamic Construction Noise and Management Plan dated August 2023 (Class 1, Tab 7) which set out how those matters that might arise during the course of construction will be managed.

16. The Applicant relies on a Heritage Impact Statement dated October 2023 which was inadvertently omitted from the Class 1 Application and subsequently tendered with the Applicant’s Bundle and marked Ex D. I reach the same conclusion as above in relation to Heritage and cl 5.10 of the CBLEP.

17. The Applicant describes the Proposed Development as an in-fill development on land that is fully serviced and proximate to every required community facility and amenity: Applicant Written Submissions, par 116. In oral closing submissions the Applicant clarifies that:

“This isn’t classic infill development. It’s an unusually shaped parcel of land and that gives rise to the need to be somewhat creative in relation to the dwellings on proposed lot 2 in terms of accepting that the setback of the second dwelling, the easternmost on that lot, won’t necessarily comply in the traditional way with setbacks from a public road. But this land is fully serviced, it’s proximate to every required community facility and amenity, including two railway stations in a very short proximate distance. It’s adjacent to Peace Park. It’s very valuable land which is currently doing no more than supporting weeds. For all those reasons we would submit the application should be approved.” (Transcript 25 September 2024, p 52 at par 1)

18. The Site is irregular in shape with a total area of 6,688m2, or 5,898.4m2 once the lot 9 panhandle is excised. I will come back to the proposed dedication of the lot 9 panhandle at [22].

19. The Site is:

1. zoned, R2 Low Density Residential, pursuant to CBLEP

2. located within the Ashbury Heritage Conservation Area (HCA), pursuant to Schedule 5, Part 2 Heritage conservation areas of the CBLEP.

3. a vacant allotment with some trees, landscaping and a substation (S502).

20. There is a 1.525m wide drainage easement (C887365) traversing the southern boundary of the site and an easement for water supply (D801930) with variable width along the southern boundary. An open drainage channel is also located along the southern boundary.

21. The Site has a secondary frontage and access from Trevenar Street and a principle frontage to King Street, Ashbury as can be readily seen in the aerial photograph reproduced below from the ASOFAC at Fig 3.

Fig 3: aerial photograph reproduced from the ASOFAC

Proposed dedication of land to Council: lot 9 panhandle

22. The Applicant submits that the best use of the pan handle is for it to be dedicated to Council for inclusion within Peace Park and relies on the decision of Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 Preston CJ to support its submission that Council ought to accept and assume responsibility for the maintenance of land that is best suited to a public purpose (Goldcoral at [175]-[177]:

“175. I agree with Goldcoral, for the reasons it advanced, that the bioswales, whilst different in form, are not different in function to the stormwater detention basins and infrastructure the Council already manages and maintains. The Council is better placed to manage and maintain the bioswales than the community association, thereby better ensuring the protection in the public interest of environmentally sensitive lands and waters. I reject the Council’s proposed conditions opposing the dedication of the internal estate roads with the bioswales, and accept Goldcoral’s proposed conditions.

176. The Council also opposed the dedication of Lot 147, which is the proposed public park. Its reason was tenuous. The Council said it does not have the financial, human and material resources to manage and maintain the local open space and parks which it currently has, and is considering disposing of existing parks. In these circumstances, the Council submitted it cannot accept and manage an additional local park. I reject this reason.

177. The management of local public parks is a fundamental responsibility of local government. If the Council is not coping with the management of existing public parks, it needs to improve its performance. Discriminating against the residents of one neighbourhood – the residents of the proposed residential estate on the land – by not accepting and managing a local park for those residents is not equitable. Goldcoral will establish all of the facilities in and landscape the park before dedicating it to the Council. The Council only has to maintain the park afterwards.”

23. In Goldcoral, lot 147 was the subject of expert evidence where “The town planning experts agreed that the proposed open space at Lot 147 (for a park) is suitably sized to meet the needs of the residents of the future community in terms of passive open space and children’s playground” (Goldcoral, [161(g)]) and the Council in Goldcoral sought conditions of consent requiring the concept land and the plan of community title subdivision to be amended to include proposed Lot 147 … to form part of Lot 1, the community property lot. (Goldcoral, [167].

24. Applicant’s Written Submissions poses two alternatives,

1. First at par 109 “the best use of this land is for it to be dedicated to Council for inclusion within Peace Park … dedicate the pan handle to Council by registration of a plan of subdivision containing a “public reserve” notation per section 49 of the LG Act”

2. Alternatively at par 110 of the Written Submissions, the Applicant submits that “if the pan handle is to remain part of a private lot, the use/landscaping of this are (such as for a vegetable garden) can be addressed as part of the amended landscape plans.”

3. In closing the Applicant said “My instructions are to leave that decision to you. … If you approve the plan which has the notation, on registration of that plan it will be carried into effect. If you don’t believe that the panhandle in the circumstances where the council don’t want it should go to the council, we need to make a condition that provides for the removal of that notation from the plan. It’s as simple as that.” (Transcript 25 September 2024, p 51 at par 24)

25. The Applicant relies on the notation on the Plans in Ex L and the application of s 49 of the LGA which read as follows:

“On the registration by the Registrar-General of a plan on which land is marked with the words “public reserve”, or of a transfer or conveyance to a council of land identified in the transfer or conveyance as being for use as a public reserve, the land is dedicated as a public reserve and vests in the council for an estate in fee simple.”

26. In closing, the Applicant pressed that “it just seems practical and logical that that strip be added to the park. However, if the council insists and doesn’t want it, just create it as a separate lot and it will remain in my client’s ownership. My instructions are to leave that decision to you … If you don’t believe that the panhandle in the circumstances where the council don’t want it should go to council, we need to make a condition that provides for the removal of that notation from the pan. It’s as simple as that.” (Transcript 25 September 2024, p 51 at 22 to 34)

27. The experts address the implications of dedication of land to Council and note that the land would be dedicated an no cost to Council and that no compensation is sought for the land (JER, par 33). Ms Hodgkinson agrees (at JER par 31) with Ms Englund’s suggestion at par 35 that “If the land was to be dedicated to Council, it should be the entirety of the battle-axe handle (as shown below), to avoid the creation of a highly irregularly shaped allotment and to avoid the inclusion of unusable land in the resultant residential lot (noting that the small remaining part of the access handle is constrained by the stormwater easement and a run of plantings, such that it cannot be used by future occupants of the residential lot)”. The subdivision plans at Ex L are consistent with Ms Englund’s suggestion and I note that the lot 9 does not have any constraints by the stormwater easement thus resolving Ms Englund’s concerns raised in the JER.

28. Ms Englund’s remaining concern regarding Lot 9 is that:

“Lot 9 forms part of the CP to be created and will be bound by the Community Association Management Plan. RE considers that it would be unreasonable and inappropriate to dedicate land that forms part of a CP and that is bound my a Management Plan to Council. If the dedication is to be pursued, RE is of the opinion that it should be a separate DP, created by Torrens Title subdivision. (SJER at par 29(b)).

29. Ms Englund’s concern is a misunderstanding of the application of s 49 of the LGA and not appreciating that upon registration of the plan of subdivision in accordance with Ex L, Lot 9 will be excised from and will not form part of the proposed community title consisting of the remaining lots 1 to 8.

30. No other concern is raised by Ms Englund regarding the proposed dedication of Lot 9.

31. In closing submission, the Respondent denies not wanting to augment Peace Park with Lot 9 and explains that the concern is related to timing of remediation of any contamination on Lot 9 notwithstanding acknowledging that clearing and remediation is to be undertaken and completed prior to the first subdivision. (Transcript 25 September 2024, p 59 at par 10 to 50) The Respondent does not suggest that the panhandle is excluded from the RAP (at Tab 28 of the Class 1 Application). The Respondent’s submission is not based on fact nor is it supported by the evidence. The RAP states at p 1 what contaminants were found on the Site and unequivocally states that “no contamination was identified within the access handle in the northern portion of the site.” To support this statement the DSI Sampling Location Plan dated 17 March 2022 at Appendix A of the RAP shows no less than three Environmental borehole locations marked within the area of the proposed Lot 9. I find that there is no evidence to support any concern that Council would be at risk of being liable “to compensate people if something happens because of something in the land” (Transcript 25 September 2024, p 59 at par 23). Equally, if the lot 9 is not dedicated and remains as a residual lot, the evidence is that there is no contamination concern regarding lot 9.

32. The Respondent’s remaining concern expressed during closing is that it is not in the public interest to retain Lot 9 in the ownership of the Applicant, and gives two reasons. First reasons it is not in the public interest is that the creation of Lot 9 as a separate lot in private ownerships by way of subdivision would not be consistent with the subdivision objective of preventing fragmentation or isolation of land (cll 4.1A(1)(g) and 4.1AA(1)(f), CBLEP). The second reason the Respondent argues it is not in the public interest to retain Lot 9 as a separate Lot in private ownership would create a situation where, following the sale of all the separate dwellings, there would be not much economic interest and incentive to properly maintain and care for what is an awkward and inconvenient residue of the subdivision. (Transcript 25 September 2024, p 60 at 25 to 35).

33. Similarly, regarding flooding, I am satisfied that the evidence does not support any concern as to flooding on Lot 9. The Respondent did not raise any specific issue on flooding and the Applicant relies on the Flood Impact Assessment behind Tab 44 of Ex B at Fig 3.4 after p 9 which shows that there is no flooding of the panhandle at all. (Transcript 25 September 2024, p 64 at par 9)

Conclusion re dedication of lot 9.

34. The Respondent has given no compelling or credible reason for not accepting the dedication of Lot 9 and I agree with the Respondent that it would not be in the public interest for Lot 9 to be retained in the private ownership of the Applicant. I agree with the Applicant that it is practical and logical that that strip be added to the park.

The contentions

35. The JER and SJER records the agreement of the experts in respect of many of the issues in contention, however, where there is disagreement, it is signification and critical to the determination of the Appeal. I am required to make findings as to evidence to be preferred.

36. The Respondent presses the contentions as set out in the ASOFAC notwithstanding the amendment to the Proposed Development by way of Ex L (the first stage subdivision resulting in a four step development). The Respondent, at the close of the hearing confirms that it does not press public pedestrian access to Peace Park (Contention 6, particular (a), ASOFAC).

37. In relation to insufficient information (Contention 3) I note the parties’ submissions and the Respondent’s concessions as follows (see Transcript 25 September 2024, p 61):

1. The experts agree that there are some minor inconsistencies in the Statement of Environmental Effects (SEE) that need to be addressed, but these do not give rise to environmental issues. I agree with the Applicant that as a matter of law, amendments are not required as the SEE is an assessment tool and does not give rise to form part of the development consent, if consent was granted: Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79

2. The Respondent submits that the insufficient information or inconsistencies in the Architectural Plans is addressed in part (Transcript 25 September 2024, p 61 at par 12). The experts say however, at par 51 of the JER, that these aspects can be addressed by amended plans or conditions of consent.

3. The Respondent submits that there remains insufficient information regarding Building Height and that the criticisms have not been adequately addressed because the drawing with the red line does not provide the full answer to the issues that were raised. (Transcript 25 September 2024, p 61 at par 18). I come back to building height at [130]

4. Stormwater Plans: there remains an inconsistency with Drawing 300 Rev E Tab 40 Ex B regarding the turning circle and the conditions require certification of the adequacy.

5. Built form is resolved (Transcript 25 September 2024, p 61 at par 24)

6. Solar Access is expressed by the Respondent as being resolved notwithstanding the non-compliance. There is discussion in the JER concerning solar access as shown on Drawing DA605 revision F which is limited to the private open space of the detached dual occupancies on the lot fronting King Street, where there is a slight shortfall in the Canterbury-Bankstown Development Control Plan 2023 (CBDCP) guideline in respect of private open space access to those two allotments only, which receive solar access but not to 50% of the area required over the three hour timeframe. The Respondent submits that it is something that can be managed: Transcript 25 September 2024, p 61.

7. BASIX certificate (provided at Ex O), Heritage (provided at Ex D see [16] above) and Landscaping are all resolved.

38. The Respondent’s case is that the Development Application should be refused for the following reasons:

1. The size of the majority of the lots proposed are less than the minimum size lot size shown on the Minimum Lot Size Map pursuant to the CBLEP (Contention 1).

2. The Applicant has not correctly characterised the Proposed Development or considered the applicable standards and controls. (Contention 2)

3. The Proposed Development does not meet the Floor Space Ratio (FSR) standard in cl 4.4 in the CBLEP and is not accompanied by a written request to vary the standard pursuant to cl 4.6 of the CBLEP (Contention 4).

4. The Proposed Development does not meet the provisions for dwelling houses and semi-attached dwellings in Chapter 5.2 of the CBDCP (Built form and amenity, Contention 5)

5. The Proposed Development is not acceptable when considering Urban Design (Contention 6):

1. Pedestrian Through Site Link is not pressed by the Respondent (Transcript 25 September 2024, p 62 at par 18)

2. Driveways/Front Setbacks – in the footpath on the northern side of the private road where the crossovers occur there is some change in levels of the footpath to the gradient or passageway of the vehicles to the garages, identified as a potential trip hazard. The Applicant concedes these to be “very minor matters and can be dealt with by way of condition. It’s a simple matter to make sure the change in grades are safe and convenient for pedestrian traffic.” (Transcript 25 September 2024, p 50) and JER at par 138. Refer to Condition 3(k) of Annexure A.

3. Bin Storage Areas – this came down to a separate door from the laundry to the rear area of the eastern dwelling on lot 2. Refer to Ex B, Tab 39 drawing DA104 Rev F. Written Submissions at par 106 “A separate door from the laundry to the rear area of the eastern dwelling on Lot cannot be provided due to potential overland flow ingress during a flood event. However, an alternative additional access to the bin storage area, on the northern side of the dwelling, can be provided through the garage.” (See also Transcript 25 September 2024, p 50) Refer to condition 3(d) of Annexure A.

4. Landscape – At Tab 13 of Applicant’s bundle and experts agree that this contention can be cured by amended landscape plans and is dealt with in the conditions of consent at condition 3(a): JER at par 145 to 146 (Ex 2)

5. Amenity – The experts agree that privacy concerns pertaining to these bathrooms may be addressed by conditions of consent to ensure adequate treatment to these, such as the use of louvres, fluted glass or similar (JER at par 148). Condition 3(c) gives effect to this agreement.

6. Façade Design: the experts agree that these changes may be addressed by either amended drawings or as a condition of consent (JER, at 152). Condition 3(b) gives effect to this agreement.

39. While Contention 2 (characterisation of the development) informs Contention 1 (minimum lot size) and also informs Contention 4 (FSR), in the event that I find that either the minimum lot size development standard or the FSR development standard is contravened, I would be compelled to refuse the development application because the Applicant does not rely on any written request to justify such contravention pursuant to cl 4.6 of the CBLEP. There is also the satisfaction of the development standard for dual occupancy development in cl 4.1A(4)(b) regarding minimum lot width and the applicant’s reliance on a written request pursuant to cl 4.6 of the CBLEP to justify the contravention of that development standard.

40. I deal with the contended jurisdictional prerequisites from [65] after setting out my findings on characterisation of the Proposed Development below. I give my reasons for the satisfaction of the contended jurisdictional prerequisites being:

1. minimum lot size for community title subdivision, cl 4.1AA (Contention 1) at [65] and [67]

2. minimum lot frontage width for dual occupancy, cl 4.1A(4)(b) (Contention 5) at [70]

3. Minimum lot size for subdivision of a dual occupancy, cl 4.1A(5) at [45] and [67]

4. FSR, cl 4.4 at [79] and [112]

5. HOB, cl 4.3 at [130]

41. The evidence of the experts, and to the extent that there is agreement reached on the conditions of consent, supports a finding that there are no merit contentions that warrant the refusal of the Proposed Development.

42. The experts agreed that the issue of characterisation raised in Contention 2 can be resolved by reverting to a proposal generally consistent with the original Development Application and the experts say that by reverting to the eight lot community title subdivision comprising one community property lot and seven community development lots:

“then the development would be appropriately characterised as:

One detached dual occupancy dwelling

One dwelling house and

Five attached dual occupancy dwellings.” (JER at [37]).

43. The Applicant submits that Contention 2, regarding characterisation of the development, is resolved because, to overcome this contention, and to reflect the agreement of the planning experts in par 14 of the JER, the Applicant amended the Proposed Development to revert to a proposal generally consistent with the originally proposed Development Application, and subdivide the Site into nine lots prior to the construction of the dwellings so that each dual occupancy would be located on one lot of land in accordance with the Community Plan Subdivision (Ex L).

44. The Applicant’s submission that the further subdivision does not change the characterisation of the development, otherwise you could “never take advantage of the special provision” in cl 4.1A(5) of the CBLEP (Transcript 25 September 2024, p 43 at par 23). The terms of cl 4.1A(5) of the CBLEP provides development standards for the subdivision of dual occupancy on Area 2 land being firstly a minimum lot size of 300m2 and secondly that there be 1 dwelling on each lot created.

45. It is common ground that the Site is in “Area 2” and that the Application before the Court is for further subdivision of the dual occupancy dwellings into individual allotments. The Applicant relies on such subdivision being permissible with consent under cl 4.1A(5) of the CBLEP. I find that the subdivision of the dual occupancies complies with the development standards in cl 4.1(5) of the CBLEP because each resulting lot will be at least 300m² and there will be 1 dwelling on each lot created: Ex B, Tab 38. I reproduce cl 4.1A of the CBLEP below at [51]

46. The Respondent did not take the court through the relevant provisions of the CBLEP in opening but did so in closing submissions (Transcript 25 September 2024, from p 53).

47. In closing, the Respondent refers the Court to the subdivision objective at cl 4.1(1)(g) of the CBLEP “to prevent fragmentation or isolation of land. However, I note firstly, that cl 4.1(4) provides that this clause does not apply in relation to the subdivision of any land by any kind of subdivision under the Community Land Development Act2021 and the Proposed Development seeks consent for the subdivision of land under the Community Land Development Act2021 therefore cl 4.1 of the CBLEP is not relevant. Secondly, however, cl 4.1AA which does deal with community title subdivision includes the same objective at cl 4.1AA(1)(f).

48. The Respondent makes submission as to the interpretation and application of the terms of cl 4.1AA Minimum subdivision lot size for community title schemes and cl 4.1A Minimum subdivision lot sizes and special provisions for dual occupancies. The Respondent relies on the absence in cl 4.1A of any language like that in cl 4.1AA(4) which reads “This clause applies despite clause 4.1” to support the submission that

“if you’re going to subdivide land involving a dual occupancy, then you need to comply with the restrictions and the requirements of 4.1A. If you’re going to do that by means of a community title subdivision, then you also have to comply with 4.1AA. They work together in that instance.” (Transcript 25 September 2024, p 54 at par 31)

49. The Respondent submits that cl 4.1A of the CBLEP, which provides a minimum lot size development standard for dual occupancies of 600m2, deals with any version of a proposed subdivision “No matter which way you want to do it, strata plan, DP, or community title, 4.1A sets the parameters for that, but we say that if that subdivision of a lot of a dual occupancy arrangement is going to be undertaken by a community title scheme, then 4.1AA comes into play. A landowner can’t sidestep or avoid or exempt itself from an obligation to comply with 4.1AA simply by introducing a dual occupancy as part of the development, whether it’s done at a stage or not a stage.” (Transcript 25 September 2024, p 54 at par 21).

49. Minimum subdivision lot size for community title schemes: 460m2 (cl 4.1AA(3), CBLEP)

4.1AA   Minimum subdivision lot size for community title schemes

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

(a)  to ensure lots are large enough to accommodate proposed dwellings, setbacks to adjoining land, private open space and landscaped areas, driveways and vehicle manoeuvring areas,

(b)  to ensure lots can be used for buildings that are safe from flooding, bush fire risk and other hazards,

(c)  to ensure lots are large enough to protect special attributes, including natural or cultural features, heritage items, heritage conservation areas, trees and natural topographical features,

(d)  to ensure all lots are provided with adequate and safe access,

(e)  to minimise the likely adverse impact of subdivision and development on the amenity of the area,

(f)  to prevent fragmentation or isolation of land.

(2)  This clause applies to a subdivision (being a subdivision that requires development consent) under the Community Land Development Act 2021 of land in any of the following zones—

(a)  Zone R1 General Residential,

(b) Zone R2 Low Density Residential,

but does not apply to a subdivision by the registration of a strata plan.

(3)  The size of any lot resulting from a subdivision of land to which this clause applies (other than any lot comprising association property within the meaning of the Community Land Development Act 2021) is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

(4)  This clause applies despite clause 4.1.

51. Dual occupancy provision 600m2 cl 4.1A(4), CBLEP:

4.1A   Minimum lot sizes and special provisions for dual occupancies

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

(a)  to ensure lots are large enough to accommodate proposed dwellings, setbacks to adjoining land, private open space and landscaped areas, driveways and vehicle manoeuvring areas,

(b)  to ensure lots are large enough to protect special attributes, including natural or cultural features, heritage items, heritage conservation areas, trees and natural topographical features,

(c)  to minimise the likely adverse impact of development on the amenity of the area.

[…]

(4)  Development consent must not be granted to development for the purposes of dual occupancies on a lot on land identified as “Area 2” on the Clause Application Map unless—

(a)  the lot is at least 600m², and

(b)  the width of the lot at the front building line is at least 15m, and

(c)  each dwelling will have a frontage to a road.

(5)  Development consent must not be granted to the subdivision of a dual occupancy on a lot on land identified as “Area 2” on the Clause Application Map unless—

(a)  each resulting lot will be at least 300m², and

(b)  there will be 1 dwelling on each lot created.

52. The confusion arises from the fact that firstly, both stages of subdivision are community title which at first instance could be seen to attract the provisions of cl 4.1AA (min lot size of 460m2) at each stage, which I conclude to do so would be a misapplication of the controls to the development as characterised. Secondly, confusion arises from a misunderstanding of the sequence of development proposed which is development for construction of substantially compliant dual occupancy dwellings on complying lot sizes of greater than 600m2. These constructed dual occupancies are then subdivided pursuant to cl 4.1A(5)(a) of the CBLEP into notionally compliant lot sizes of greater than 300m2 and a dwelling on each lot of land. The Respondent’s argument would import a carve out or exclusion to the control in cl 4.1A(5) leaving it with no work to do when a constructed dual occupancy on existing community title is then subdivided within that community title scheme. I do not read into the clause what is not there. Clause 4.1A(5) is clearly and succinctly written imposing a specific development standard for the subdivision of a dual occupancy and I do not read into that any carve out or exclusion.

53. The confusion is evident during cross examination of the expert witnesses when the Respondent conflates compliance with the 460m2 minimum lot size compliance for the 8 to 9 lot subdivision (cl 4.1AA(3)) and the non-compliance with the 15m lot frontage width (cl 4.1A(4)(b)).

54. Ms Hodkinson says that cl 4.1AA which relates to community title does not apply to the second subdivision because cl 4.1A “stands separately for the purpose of dual occupancy development” (Transcript 25 September 2024, p 10 at par 47) and her reasoning is set out in par 16 to 19 of the SJER (Ex N) concluding that “there is no impediment to the further subdivision of dual occupancy development under community title”.

55. In the JER at par 19 the experts agree that the Concept Subdivision Plans which are now Ex L “would not require the submission of a request to vary the development standard against cl 4.1AA(3) nor 4.1A(4) as contended at particular (d) as it relates to minimum lot size.”

56. In the SJER, Ms Englund at par 25 expressly refers to cl 4.1A(5) and complains that cl 4.1A is not addressed in any supporting document such as the Amended SEE and at that time, the absence of a formal plan of subdivision (now Ex L) creating the lots for dual occupancy showing how is this development standard satisfied. In cross examination Ms Englund’s opinion is that cll 4.1AA and 4.1A “can both be read independently. There’s nothing that stops them from being read both separately and being both applicable to the application.” (Transcript 25 September 2024, p 11 at 27)

57. In evidence before the Court is the Plan of Subdivision creating the lots for the dual occupancies (except Lots 3 and 9) at Ex L and the Plan of Subdivision which subdivides only those dual occupancies at Ex B, Tab 38, showing compliance with cl 4.1A(5) of the CBLEP, i.e. subdivided dual occupancy lots greater than 300m2. It is noted that lot 4 (formerly lot 3) is excluded as part of Stage 1 and is the lot that contains the single dwelling house.

58. In closing submissions, the Applicant submits that the Court as to:

“deal with cll 4.1AA and 4.1A, and how they’re to be read together. My learned friend says that, as I understand the submission, that if you are having a community title subdivision, the minimum size allotment - resulting allotment has to be not smaller than 460 square metres, and he says that that applies whether you are proceeding with subdivision under 4.1AA and 4.1A. Our submission is that 4.1A is a special provision that relates only to the subdivision of dual occupancy development, and no other. It’s a special provision, which, as a matter of statutory construction, overrides the more general provision in clause 4.1AA.

The provisions of sub-clause 5 refer to subdivision of a dual occupancy. The meaning of subdivision - the word subdivision, is found in the Environmental Planning and Assessment Act in s 6.2, and it means to divide land into separate parts. And if you read the definition, Commissioner, you’ll see that it does not exclude subdivision by community title subdivision. So, this special provision in 4.1A in sub-clause 4 relates only to the subdivision of a dual occupancy in “Area 2”, and it allows for the resulting lots to be at least 300 square metres. It does not require the resulting lot to be 460 square metres, and there’s no other way to construe the two provisions of the LEP to make sense of them.” (Transcript 25 September 2024, p 65 at 28)

59. The resolution of the application of the apparently conflicting minimum lot size development standards in cl 4.1AA (460m2), cl 4.1A(4)(a) (600m2) and cl 4.1A(5)(a) (300m2) CBLEP is found in the application of the maxim that the specific overrides the general when there are clauses that are unable to be reconciled within the one instrument. The first appearing clause in the CBLEP is cl 4.1AA and relates to community title scheme subdivision prescribing a min lot size of 460m2 in Area 2. The later appearing clause in the CBLEP is cl 4.1A and relates more specifically to minimum lot sizes and special provisions for dual occupancies and applies to all dual occupancies without carve out or exceptions.

60. If a specific provision conflicts with a more general one in the same or an earlier statute, there is a general rule that the specific provision prevails.  However, the conflict must first be completely irreconcilable (Purcell v Electricity Commission of NSW [1985] HCA 54; (1985) 60 ALR 652; (1985) 59 ALJR 689; (1985) 11 IR 105 (5 September 1985) at [16]; Pearce & Geddes (at [4.40, 7.20]), a court construing a statutory provision must strive to give meaning to every word of the provision, applying the hierarchy/harmony principles the High Court set out in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[71].

61. The express quote from Purcelll at [16] per Mason ACJ, Wilson, Brennan, Dawson JJ is that “The maxim [generalia specialibus non derogant] applies only where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation.”

62. I conclude that the terms of cl 4.1A provides specific provisions that relates to dual occupancies that provides controls and development standards that apply only to dual occupancy development and they relate to more than just subdivision as is evidence by subcl 4.1A(4) and then the specific further provision for the subdivision of a dual occupancy in the terms of subcl 4.1A(5). I find that subcl 4.1A(5) is a specific clause applying only to the subdivision of a dual occupancy that cannot be reconciled with the earlier cl 4.1AA regarding community title schemes and therefore conclude that the later clause overrides the earlier clause, to read it otherwise would result in importing into cl 4.1A(5) a limitation that it could never to be applied to a subdivision of a dual occupancy within a community title scheme without those words being present at all within cl 4.1A of the CBLEP.

63. I conclude that the assessment of compliance is to be done in accordance with the sequence of the development. I find that the characterisation of the Proposed Development is for a community title subdivision and construction of dual occupancy dwellings and a single dwelling on lot 3, and is to be assessed in accordance with the controls and development standards applicable that relate to community title subdivision and dual occupancy development (including cll 4.1AA, 4.1A(4), 4.3, 4.4). Accordingly, I find that the second subdivision is a subdivision of a constructed dual occupancy within an community title scheme, already assessed and determined, and that dual occupancy subdivision is assessed pursuant to the specific provision of cl 4.1A(5) of the CBLEP.

64. Applying my findings on characterisation of the Proposed Development, I now give my reasons as to satisfaction of the contended jurisdictional prerequisites listed above at [40].

Minimum lot size for community title subdivision (Contention 1) 460m2

65. Dealing then with contention 1, there is disagreement as to the applicable provisions regarding the various minimum lot size development standards for the purpose of evaluation and assessment of the Proposed Development.

66. In accordance with cl 4.1AA of the LEP, the size of any lot resulting from community title subdivision (being subdivision under the Community Land Development Act2021) is not to be less than the minimum size shown on the Lot Size Map of the LEP. The minimum size shown on the Lot Size Map of the LEP in relation to the Site is 460m². The experts agree (JER par 10).

67. I find that the first subdivision complies with both the cl 4.1AA min lot size of community title of 460m2 and the cl 4.1A min lot size for dual occupancy of 600m2 because all residential lots 2 to 8 (Ex L) for the purpose of construction of the dual occupancies have a lot size area greater than 600m2. I find then that the specific and subsequent subdivision of the dual occupancy, which attracts the specific and overriding control that relates solely to the subdivision of a dual occupancy on land identified as “Area 2”, is complied with because the subdivided dual occupancy lots are all greater than the 300m2 minimum lot size development standard for the subdivision of dual occupancies. The fact that both subdivisions are pursuant to the Community Land Development Act2021 does not override the application of the specific provisions of cl 4.1A(4) and (5) of the CBLEP. One reason is as articulated by the Respondent, the subdivision of a dual occupancy is not limited in type or species of subdivision and therefore applies to all types. I do not agree with the Respondent that the reading of both cl 4.1AA and cl 4.1A “means that the lots have to be bigger if your’re going to subdivide a dual occupancy by a community title development”. There is nothing in any of the language of cl 4.1A that leads me to that interpretation.

68. I conclude that the subdivision of the dual occupancies requires compliance with cl 4.1A(5) of the CBLEP and the evidence does not support any conclusion that the subdivision of the dual occupancies is not consistent with the objectives of cl 4.1A. For reasons given above I do not apply the terms of cl 4.1AA to the subdivision of the dual occupancies.

69. The town planning experts agree that if the Applicant were to revert to a proposal generally consistent with the subdivision proposed on the original Development Application, then each of the lots would be able to comply (and exceed) the minimum lot size of 460m2 (JER Town Planning at [11], and a written request pursuant to cl 4.6 of the CBLEP to justify the contravention of a development standard would not be required relating to minimum lot size (JER at [19] but they agree that proposed Lot 2 is non-compliant with the 15m minimum width prescribed by cl 4.1A(4)(b) of the CBLEP (JER at [20]).

Is the contravention of the dual occupancy development standard of minimum lot width frontage justified pursuant to a cl 4.6 written request?

70. The Applicant relies on a Written Request prepared by Hamptons dated 1 September 2024 (Ex C, Tab 2 of Applicant’s Bundle) pursuant to cl 4.6 of the CBLEP to justify the contravention of the dual occupancy minimum width of lot frontage development standard set by cl 4.1A(4)(b) of the CBLEP.

71. The Respondent’s expert, Ms Englund, while agreeing that the width is similar to the adjoining lots says that she does not think that the Written Request makes all the points put to her by the Applicant during cross examination and her concern remains that she is not satisfied with the setback to the private road and says that

“It does not comply. It does not provide a landscape screen setting and it is because of the non-compliant width that that non-compliance arises, go hand in hand.” Transcript 25 September 2024, p 17 at 22)

72. The Applicant referred Ms Englund to her own diagram at par 28 of the JER where she depicts the front lot fronting onto King Street and sets out her opinion that “it would be more appropriately be developed for a single dwelling, in the manner shown in that diagram.” Landscape screening is not mentioned by Ms Englund here.

73. The task for the Court when a development standard is contravened is set out in the terms of cl 4.6 of the CBLEP.

74. The Written Request, identifies at p 1 that the width will be 10.4 metres for the westernmost lot where it fronts King Street, being a shortfall of 4.6 metres.

75. The objectives of cl 4.1A are referred to on p 3. The arguments in support of the cl 4.6 request are at pp 3 and 4.

76. The sufficient environmental planning grounds are set out on the bottom of p 4 of the Written Request. I accept that the design of the dwelling on the proposed allotment provides a form, scale and materiality that is commensurate with that presented to the streetscape of King Street as clearly shown in the deposited plans which shows the cadastral pattern in the street. I accept that historically speaking, all the lots in King Street were created more or less with a frontage which was less than 15 metres. I find that the frontage of this site at 10.4 metres is not significantly different to many other lots on both sides of King Street (Ex G).

77. The Applicant summarises submission on the cl 4.6 Written Request as follows:

“The lot is an unusually shaped lot, it is what it is. It’s an infill lot, it’s zoned residential, you need to have access to the rear of the lot to the east if you’re going to develop it for its stated objectives for development. You have to provide the private road access handle. You have to provide a display (sic) to it for safe site distances. You’re left with a lot which will have an apparent frontage of 10.4 metres, not dissimilar to the other lots in the street, and with a dwelling which is single story in its appearance, with a modern vernacular or reinterpretation of the older interwar cottages that appear in the street, but I rely on all the matters that are set out in sufficient environmental planning grounds, and then the public interest is also addressed with Ms Hodgkinson arguing that the proposal is consistent with objectives for development in the zone and the objectives of the standard. We rely on that document.” (Transcript 25 September 2024 p 33)

78. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.1A(4)(b) of the CBLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the CBLEP.

Does the Proposed Development comply with the FSR development standard? (Contention 4)

79. The other development standard informed by the characterisation of the Proposed Development is set out in cl 4.4 of the CBLEP which sets a maximum FSR for the buildings proposed to be constructed on the Site.

80. The Respondent contends that the Proposed Development does not meet the FSR standard in cl 4.4 in the CBLEP and is not accompanied by a written request to vary the standard. At particular (d) of Contention 4 in the ASOFAC the Respondent identifies the crux of the dispute between the parties, namely that the Applicant’s calculation of FSR “does not acknowledge the proposed subdivision of land, or the appropriate characterisation of the development”.

81. In terms of characterisation of the development, the proposal is for dual occupancy development to be being carried out after the 9 lot subdivision pursuant to Ex L where:

1. All lots except lot 9 will be part of the community title subdivision. Lot 9 is proposed to be ‘excised’ and dedicated as public land thereby not part of the community title subdivision. No construction or other works are proposed on Lot 9.

2. Lot 3 is for a dwelling house with an area of 614.3m2 and the FSR development standard is 0.5:1 (cl 4.4(2B)(b)(iii), CBLEP).

3. Lot 1 is the private driveway with an area of 1,390.8m2 (SJER, par 11), on which it is agree that significant development will be carried out namely a road to be constructed, curbs and guttering, footpath, onsite detention system, drainage etcetera (cl 4.5(6), CBLEP) (the agreement is set out at [89] below).

4. Dual occupancy constructed on 6 remaining lots being lots 2, 4, 5, 6, 7, 8 and the FSR development standard for a dual occupancy is 0.5:1 (cl 4.4(2B)(c), CBLEP)

5. The dual occupancies will then be subdivided in accordance with cl 4.1A(5) of the CBLEP.

82. The Applicant submits that the Respondent’s contention is based on an erroneous calculation of the FSR or the Proposed Development that is inconsistent with the CBLEP (Applicant’s Written Submissions, par 63). The Applicant relies on the definition of ‘site area’ and the inclusion of the area of Lot 1, the private driveway, in the FSR calculation, in accordance with the terms of cl 4.5(6) of the CBLEP. The Applicant did not tender any cl 4.6 written request in the event that their submission is rejected.

83. It is agreed that the provisions of cl 4.4 of the CBLEP and the applicable FSR are dependent upon the characterisation of the Proposed Development, however the parties do not agree on the size of the site to which the development relates (cl 4.5, CBLEP). Again, the Site is in Area 2 and I set out the relevant provisions of cl 4.4 of the CBLEP below as there is substantial disagreement between the experts and the parties.

4.4 Floor space ratio

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

(a)  to establish the bulk and maximum density of development consistent with the character, amenity and capacity of the area in which the development will be located,

(b)  to ensure the bulk of non-residential development in or adjoining a residential zone is compatible with the prevailing suburban character and amenity of the residential zone,

(c)  to encourage lot consolidations in commercial centres to facilitate higher quality built form and urban design outcomes,

(d)  to establish the maximum floor space available for development, taking into account the availability of infrastructure and the generation of vehicular and pedestrian traffic,

(e)  to provide a suitable balance between landscaping and built form in residential areas.

(2)  The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

…

(2B)  Despite subclause (2), the following maximum floor space ratios apply—

…

(b)  for a building used for the purposes of dwelling houses or semi-attached dwellings on land identified as “Area 2” on the Clause Application Map—

…

(ii)  for a site area greater than 200m² but less than 600m²—0.55:1, and

(iii)  for a site area of 600m² or more—0.5:1,

(c) for a building used for the purposes of dual occupancies on land in Zone R2 and identified as “Area 2” on the Clause Application Map—0.5:1,

…

84. The disagreement between the parties and their experts hinges on the terms of cl 4.5 of the CBLEP regarding calculation of FSR and, in particular site area.

4.5   Calculation of floor space ratio and site area

(1) Objectives The objectives of this clause are as follows—

(a)  to define floor space ratio,

(b)  to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to—

(i)  prevent the inclusion in the site area of an area that has no significant development being carried out on it, and

(ii)  prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and

(iii)  require community land and public places to be dealt with separately.

(2) Definition of “floor space ratio” The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

(3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be—

(a)  if the proposed development is to be carried out on only one lot, the area of that lot, or

(b)  if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.

In addition, subclauses (4)–(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development.

(4) Exclusions from site area The following land must be excluded from the site area—

(a)  land on which the proposed development is prohibited, whether under this Plan or any other law,

(b)  community land or a public place (except as provided by subclause (7)).

(5) Strata subdivisions The area of a lot that is wholly or partly on top of another or others in a strata subdivision is to be included in the calculation of the site area only to the extent that it does not overlap with another lot already included in the site area calculation.

(6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.

(7) Certain public land to be separately considered For the purpose of applying a floor space ratio to any proposed development on, above or below community land or a public place, the site area must only include an area that is on, above or below that community land or public place, and is occupied or physically affected by the proposed development, and may not include any other area on which the proposed development is to be carried out.

85. The Amended Statement of Environmental Effects (ASEE) prepared by Hamptons Property Services, dated 4 May 2024 (Ex B, Tab 36), nominates the applicable FSR for the proposed development to be 0.5:1, and confirms at page 43 compliance with a stated FSR of 0.43:1 which is consistent with the calculations in the GFA Diagram Drawing DA-510, Issue F dated 6 May 2024 (Ex B, Tab 39). The experts agree that the calculation in the GFA Diagram Drawing DA-510, Issue F, is incorrect because carparking was not excluded (JER, par 73 to 76). The experts agree at par 77 of the JER that the figures on the GFA Diagram (Drawing DA-510, Issue F) should be amended in line with the table below:

86. The experts agree at par 79 of the JER (Ex 2) that the Site is not identified on the FSR map of the CBLEP, and as such, cl 4.4(2) is not relevant to the Proposed Development. On the other hand, cl 4.2(2B) of the CBLEP applies.

87. In accordance with cl 4.5(2) of the CBLEP, the FSR of buildings on a site is the ratio of GFA of all buildings within the site to the site area. Accordingly, the GFA is agreed between the experts however the experts remain in disagreement in relation to the calculation of FSR, and whether the proposal breaches the applicable FSR development standards (SJER, par 34, Ex N). Ms Hodgkinson relies upon her comments in the JER (Ex 2) which are set out from p 22 to 28. The disagreement arises from the reference in cl 4.5 of the CBLEP to the site and to the site area.

88. Ms Hodgkinson relies on the second limb of the definition of site area in cl 4.5(3)(b) (JER, par 83). Ms Hodgkinson opines that Council is misconstruing the size of the lot by failing to consider subclause 4.5(3)(b) (JER, par 89) and she relies on the decision of Bignold J in Billgate Pty Limited v Woollahra Municipal Council And Anor [2005] NSWLEC 61 and explains (at JER par 84) that her approach is consistent with that decision namely that:

“the proposal would comprise lots being a common driveway and seven residential lots, where all lots share a common boundary with one another. Consistent with subclause (b), above, the site area would be the aggregate area of each of the lots upon which the proposed development is to be undertaken.”

89. In relation to the inclusion of Lot 1 in the calculation of site area to assess FSR, Ms Hodgkinson says that there is no reason why the community property lot for a private driveway would be excluded from the calculation of site area (JER, par 96). None of Ms Englund’s FSR calculations include the area of Lot 1 and equally Ms Englund does not mention or explain the reason for exclusion in the JER or SJER. During cross examination Ms Englund agrees that significant development will be carried out on Lot 1 (cl 4.5(6), CBLEP) but that she excluded the area of Lot 1 in the FSR calculation because she was not 100% sure when the works were to be carried out. Ms Englund said that she thought the road needs to be created in order to obtain the community title subdivision for the nine lots. (Transcript 25 September 2024, p 21 at 37). She also queries that notwithstanding her agreement that significant development will be carried out on Lot 1 “which development gets that lot area? Is it the development for the purpose of the dual occupancies that has one FSR or is it the development for the purposes of the dwelling that get that lot? … which building under that proposition gets the area of lot 1? The clause requires them to be calculated separately, so which clause gets lot 1?” (Transcript 25 September 2024, p 22 at 10 to 35). The Applicant said that those question descend into a legal discussion and moved on.

90. Ms Hodgkinson undertook an FSR calculation of 0.45:1 based on:

1. the Site Area of 5,898.4m2, being the whole of the Site less proposed Lot 9 (which is intended to be dedicated as public land and thereby excised from the subdivision); and

2. GFA based on the concept plans. It is relevant to note that although the concept plans are not in evidence, the agreed total GFA at par 77 of the JER is 2671.92 (see above) and the FSR calculation remains at 0.45:1.

91. If Ms Hodgkinson’s approach is correct, then the jurisdictional prerequisite of complying with the development standard is satisfied. I accept the evidence of Ms Hodgkinson.

92. Ms Englund remains of the opinion that the FSR should be calculable to the size of the yet to be created lot on which each building is proposed, noting that cl 4.4(2B) stipulates the maximum FSR for “a building used for the purposes of” either dwelling houses, semi-detached dwellings or dual occupancies, with different requirement for buildings used for different purposes: SJER, par 37 and argues that the applicable FSR changes based on what the building is used for, whether dual occupancy or semi-attached dwellings: SJER, par 42-43. Ms Englund questions at SJER par 38:

“how different sublcauses of the LEP and differing FSRs can apply to different buildings, yet be calculable to the one site area. In particular [she] questions how KH can demonstrate that subclause 2B(b), which relates to the FSR of a building used for the purpose of a dwelling is satisfied independently of subclause 2B(c), which relates to the FSR of a building used for the purpose of a dual occupancy.”

93. After setting out her FSR calculations for the 7 residential lots (Lots 2 to 8) at par 39 of the SJER and the FSR calculation for the 13 residential lots (lots 2 to 14) at par 43 of the SJER, Ms Englund maintains that:

1. In relation to the first subdivision, 5 of the proposed dual occupancies exceed the maximum FSR prescribed of 0.5:1 and that absent a cl 4.6 to vary the FSR development standard, the proposal cannot be approved (SJER, par 40) and provides the following FSR calculations (extracted from the SJER, par 39, but also appears in the JER at par 110). However, it appears that the GFA agreed above (JER par 77) is not used by Ms Englund in her table where she ‘reconfirms her calculations’ in the SJER and in the JER she specifies the source of these figures to be the Concept Architectural Plans which are not in evidence. I give by way of example, the GFA for dual occupancy on Lot 2 is nominated by Ms Englund in the table reproduced below to be 317.1m2 whereas the agreed GFA for the dwellings on Lot 1A and 1A as depicted in the GFA Diagram DA 510 Rev F (located within Lot 2 in Ex L) adds up to 332.58m2. I also note that Ms Englund calculates the FSR “based on the Application as currently proposed” and apart from using an FSR development standard of 0.55:1, it is relevant to observe that the GFA in that table at par 108 of the JER also does not use the agreed GFA as per JER par 77 (see above) - I give by way of example, the GFA for the dwellings on Lots 2 and 3 are nominated by Ms Englund in the table reproduced at par 108 of the JER to be 142.2m2 and 174.9m2 whereas the agreed GFA for the dwellings on Lot 1A and 1B as depicted in the GFA Diagram DA 510 Rev F (located within Lot 2 in Ex L) as per JER par 77 are 150.34m2 and 182.24m2. I accordingly find that the calculations by Ms Englund contain errors or at least calculations which are not sufficiently explained.

Fig 4: table from SJER par 39, where Ms Englund reconfirms her FSR calculations on the Concept Architectural Plans (Rev I) – not in evidence

2. In relation to the second subdivision, Ms Englund maintains that whether considered as dual occupancies or semi-attached dwellings, the development on all except lots 2 and 4 exceed maximum FSR prescribed, whether that is 0.5:1 or 0.55:1 and with an absent cl 4.6 to vary the FSR development standard, the proposal cannot be approved (SJER, par 43). I reproduce her table from the SJER at par 43 below, however I make the same finding that the calculations by Ms Englund contain errors or at least calculations which are not sufficiently explained.

Fig 5: table extracted from SJER par 43, where Ms Englund reconfirms her FSR calculations after the second subdivision on the Concept Architectural Plans (Rev I) – not in evidence

94. Ms Englund in cross examination took the view that the dual occupancy development was only being carried out on the lots 2 to 8, whereas the Applicant seeks to include lot 1 because there is significant development being carried out on Lot 1 namely a road to be constructed, curbs and guttering, footpath, onsite detention system, drainage and “its not as though you have a residual lot, which nothing is being done, such as the panhandle [lot 9]” (Transcript 25 September 2024, p 48 at par 40)

95. In cross examination Ms Englund explains that she does not include the area of the private road (Lot 1) in her FSR calculations because she reverts back to what is the site area in cl 4.5(3)(a) which reads “if the proposed development is to be carried out on only one lot, the area of that lot”. Ms Englund says that the Applicant has been very clear that the staging of the development is that the land is to be subdivided to create new lots and then a dual occupancy or a dwelling is proposed on those new lots and then calculate the FSR of a building for the purpose of a dual occupancy and “you look at the floor space of the gross floor area of the dual occupancy in relation to the lot that it relates to.” (Transcript 25 September 2024, pg 19 at 1).

96. Ms Englund explains that when looking at the calculation of FSR for a dwelling house, you look at the gross floor area of the dwelling house, and the lot it relates to, being the lot which was created in the 9 lot subdivision. (Transcript 25 September 2024, p 20 at 10)

97. For reasons set out in Applicant’s Written Submissions from par 63 to 75, the Applicant submits that the Proposed Development complies with the FSR development standard in cl 4.4 of the CBLEP. See also Transcript 25 September 2024 at pp 47-48.

98. Ultimately, the Applicant submits that a proper construction of the CBLEP considers the final form of the Proposed Development as a whole, which is the development for which consent is sought, not simply the construction of individual dwellings on their subdivided lots. Based on this submission, the Applicant argues that the CBLEP calculates the FSR of the Proposed Development “based on the aggregate site area of all lots upon which the proposed development is to be undertaken. This includes the common driveway lot (Lot 1) upon which “significant development” will be constructed; and excludes the areas of garages from the gross floor area (GFA) calculation.” (Applicant Written Submissions, par 64)

99. In closing submissions, the Applicant repeats its submission that “it is open to argue and find that the proposed dual occupancy development is to be carried out only on one lot, that is, before it is subdivided. We have a single allotment of land with a certain site area. If you reject that argument, then subclause (b) applies.” (Transcript 25 September 2024, p 47 as par 45)

100. The Applicant, notwithstanding conceded that the development is sought in stages and that the construction of the dual occupancy follows the first subdivision, however presses that the wording of the cl 4.4 of the CBLEP “is a little ambiguous” and that although “subclause (b) seems more comfortable”, the Court could take a more “empirical view and say to determine what the meaning of the words, the proposed development is, you look at what is proposed at the end, and you say that is all being carried out on what at the starting point is one allotment of land.” However, if the Court were not to go that pathway, and finds that the proposed development is to be carried out on two or more lots, the area of any lot on which the development proposed to be carried out has at least one common boundary to another lot on which the development is being carried out, “so you would then go to the eight lot plan of subdivision, and you would say that dual occupancy development is being carried out on those eight allotments, and they comply with the requirement of cl 4.5(3)(b) definition of “site area”.

101. The Applicant relies on cl 4.5(6) being relevant and to support the argument to include the area of Lot 1 – the driveway/community association land – in the calculation of FSR. Cl 4.5(6) provides:

(6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.

102. I reject the Respondent’s submission that the development is not being undertaken on lot 1, the road (Transcript 25 September 2024, p 56 at par 1). The experts agree, and I accept, that significant development will be carried out on Lot 1 in accordance with the terms of cl 4.5(6) of the CBLEP.

103. I have referred to the authorities quoted by the Applicant in support of the aggregate or ‘global’ approach to the calculation of site area to determine the FSR. The decisions referred to include Billgate, which was also relied on by Ms Hodgkinson above at [88]. In Billgate, at [51] to [52], Bignold J accepted that the site area should be considered based on the ‘global’ or overall site area of the proposed development, rather than the relevant site area for each of the residential components of the proposed development stating as follows:

“51 It is generally recognized by the parties (in common with Ms Laidlaw) that there are difficulties in seeking to apply to the proposed development the relevant LEP and DCP controls and requirements. The difficulty principally derives from the irregular shape of the development site, being the aggregated area of the two adjoining hatchet shaped lots but it is compounded by the prospective community title subdivision of the development site (to accommodate the proposed residential development) which raises the question whether each of the proposed lots itself constitutes the relevant “site area” for each of the residential components of the proposed development rather than to regard the development site and the proposed development “globally”ie as constituting but one overall site area and one overall residential development.

52 Ultimately, I think the parties accepted Ms Laidlaw’s approach of considering the proposal “globally”including regarding the development site to be the “site area” for the purposes of the relevant controls.  …”

104. In Parker Logan Pty Ltd v Woollahra Municipal Council [2015] NSWLEC 1458, O’Neill C at [32] held as follows:

“The applicant submits that the whole of the site area, including the access handles, is the appropriate numerical value to be used for the calculation of the FSR, based on the above definition. I accept that the ordinary and literal meaning of the definition for site area, for the purpose of calculating the FSR, results in the whole of the site area (as a single allotment) being the numerical value to be used, pursuant to cl 4.5(3)(a) of LEP 2014 and that there are no relevant exclusions from the site area for the purpose of the calculation, at sub-cll (4) - (7)”

105. More recently, in STMRCF Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 111, Robson J said at [55]:

“Although with limited time, I have looked at s 4.5(6) of the WLEP, which makes reference to whether the calculation of site area must not include a lot “additional to a lot on which the development is being carried out”, and I am of the preliminary view that because the proposed development is intended to be carried out on both Lot 1 and Lot 2, the full area of those lots may be appropriately included as part of the FSR area. As I said, Council did not raise this “issue” as a contention because it contends that the proposed development complies with the FSR. Although Council does not agree with WRA’s interpretation of cl 4.5(3)(b), it is likely the case that there is significant development of Lot 1 (which raises cl 4.5(6) of the WLEP) and although this is some matter of concern, again I do not consider that this is determinative.”

106. The Respondent’s interpretation of the CBLEP regarding FSR is not consistent with these authorities and is not consistent with the language of cl 4.5, in particular, cl 4.5(3)(b) which directly contemplates a circumstance in which a proposed development is to be undertaken on two or more lots. The express inclusion of the terms in subclauses (4) to (7) in cl 4.5(3) to “apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development”, requires consideration and application of the terms of cl 4.5(6). The application of the terms of cl 4.5(6) mean that lot 1 is to be treated as an additional lot to the lots on which the development is being carried out because the Proposed Development includes significant development on lot 1. Put another way, lot 1 is included because lot 1 is not merely a residual lot with no works being carried out, and similarly, lot 9 is excluded because it is excised from the development and no works are proposed to be carried out on lot 9. This is consistent with the characterisation of the Proposed Development being a community title subdivision and construction of dual occupancy dwellings and a single dwelling on an area comprising the Site less Lot 9.

107. The Respondent submits, and Ms Englund opines, that FSR should be calculated at both subdivision stages. I do not agree because of my finding as to characterisation of the Proposed Development. However, I do make the observation that at the second subdivision being the subdivision of the dual occupancies, there is no change in bulk of the buildings and the assessment of the Proposed Development in terms of impacts has been undertaken and determined to be satisfactory. There is no change to the impact of the development effected by the second subdivision and there is certainty as to what that subdivision will be because it is part of the Proposed Development in accordance with the subdivision plans at Ex B, Tab 38 and the architectural drawing at Ex B, Tab 39.

108. In reaching this conclusion I have referred to the characterisation cases of Dallad Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1673 and Dallad Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1021 where O’Neill C dealt with an argument regarding an application for ‘semi-detached dwellings and Torrens title subdivision’ and at para [38] of each judgment said the following:

“The proposed development is properly characterised as a dual occupancy (attached) development, as defined by LEP 2014, because the site is a single lot. The proposal is for two dwellings on one lot of land, and for the subdivision of the lot into two lots of land. The assessment is done at the time of the making of the application, and at the time of the making of the application, the site is a single lot, and the proposal to be assessed is for two dwellings on that single lot and the subdivision of the lot into two lots.”

109. The experts agree at par 14 of the JER that the proposal is for the purpose of six dual occupancies and one dwelling house “and would no longer involve semi-detached dwellings”. I accept that after the subdivision of the six dual occupancies there will be 2 dwellings and eight semi-attached dwellings, however, I am satisfied that the assessment has been undertaken in accordance with cl 4.5 of the CBLEP for the dwellings for which consent is being sought to be constructed on the 7 lots plus the community property lot 1 for the private driveway, as set out at [2].

110. I accept the applicant’s submission that the proposal complies with the FSR development standard in the CBLEP.

111. I prefer the evidence of Ms Hodgkinson because it is consistent with previous decisions of the Court and I find that the site area for the purpose of calculating the FSR is the Site less proposed Lot 9 because lots 1 to 8 will be the site of the development for the dwelling house and six dual occupancies, including the area of lot 1 on which significant development will be carried out.

112. I conclude, for these reasons, that the FSR development standard is not contravened by the Proposed Development.

Built form and amenity (CBDCP 2013) – contention 5

113. The Respondent contends that the proposed dwelling houses do not satisfy the controls in Chapter 5.2, Section 2 and Section 3, in the CBDCP being provisions for dwelling houses and semi-attached dwellings.

114. The Applicant submits in Written Submissions from para 94 (Transcript 25 September 2024, p 49) that the only dwelling house would be on proposed lot 3 where the frontage is 11.27m, being less than the 15m control stipulated in the CBDCP. I have dealt with lot frontage at [70] in the context of the CBLEP development standard in cl 4.1A.

115. The experts agree that there are very limited differences between the controls that apply to dual occupancies and those that apply to semi-attached dwellings, both of which are provided in the same Section 5.3 of the CBDCP (SJER at par 44)

116. I agree with the Applicant that characterisation of the dwellings as dual occupancies would not be subject to these CBDCP controls and I note that the Applicant submits that “even if the controls for semi-detached dwellings applied, there would be only minimal non-compliance with the relevant controls of the CBDCP.

117. I find that on balance, and notwithstanding my findings on characterisation of the Proposed Development, any non-compliance would be minor and does not warrant the refusal of consent.

118. For completeness, I now set out how I have reached the requisite level of satisfaction as to other non-contended jurisdictional prerequisites.

Stormwater

119. In the previous Trevenar decision stormwater was dealt with at [66]-[67] as follows:

“66. I am not satisfied that the management regime of the OSD system is sufficiently certain and I am not satisfied that the evidence is sufficient to allow me to form the opinion of satisfaction required by cl 5.21(2) of the CLEP.

67. I accept that the design of the OSD system is to mimic the existing conditions however I am not satisfied that the evidence supports the proposition that the potential (or likely) failure to manage and maintain the OSD system will similarly mimic the existing conditions. I find that the reliance on co-ordinated efforts of each individual Lot owner in the Torren title subdivision is not orderly development.”

120. The jurisdictional prerequisite regarding minimising floor risk to life and property with the use of land (flood planning) is set out in cl 5.21(2) and (3) of the CBLEP as follows:

(2)  Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—

(a)  is compatible with the flood function and behaviour on the land, and

(b)  will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c)  will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d)  incorporates appropriate measures to manage risk to life in the event of a flood, and

(e)  will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

(3)  In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters—

(a)  the impact of the development on projected changes to flood behaviour as a result of climate change,

(b)  the intended design and scale of buildings resulting from the development,

(c)  whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

(d)  the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

121. The Applicant explained the function of the drainage system, the interception of stormwater flowing from Peace Park, the OSD system which collects that stormwater from external to the Site and within it, and its management by the community association. There is a Plan of Management of the stormwater infrastructure in the Community Management Statement (Transcript 25 September 2024, p 41). The Applicant goes on to submit as follows:

“In my respectful submission, the Court would no longer have that reservation which was expressed in the earlier judgment regarding stormwater, and I also just note that I referred before lunchtime to those computerised plans which show the 1% AEP and the pre and post flooding conditions, and that post development, there will be no exceedance or exacerbation of flood impacts, even if the OSD was to overflow because it was somehow blocked or something like that.” (Transcript 25 September 2024, p 42 at 1)

122. I have considered the Proposed Stormwater management and am also satisfied that there is appropriate provision for erosion and sediment control (Drawing 100 Issue E provides for erosion and sediment control, having regard to the topography of the land being downslope of Peace Park, and Drawing 300 Issue G Site Layout Plan).

123. One of the objectors was concerned about flooding. I note and accept that the proposal, by design, has proposed swales marked in with red arrows. Those swales intercept and direct stormwater drainage to a series of inlet pits, which are shown by little black squares, particularly along the northern boundary of the development, and along the northern side of the footpath in the private road (Lot 1). That drainage intercepts and feeds into a detention basin, which is shown under the private road. There are a number of inlet pits on the road surface, itself, which leads into the detention basin, and the basin is then further detailed on Civil Engineering Plan Drawing 305 Issue B dated 29 February 2024, where it is shown in section on the left-hand side of the page, above the heading “driveway one typical section”. The detention basin feeds into an existing stormwater easement (EXSW), which is shown on Civil Engineering Plan Drawing 100 Issue B dated 2 April 2024 by a light blue, dashed line over downstream land marked “EXSW”. The EXSW is an easement with a pipe in it, fed from the onsite detention tank. Behind tab 14 of the Class 1 Application (Ex A) is a Community Management Statement for the Community Land Development Act 2021 requirements and contains obligations with respect to each lot owner in the Community Scheme in by-law two, an owner or occupier must keep the lot clean and tidy, good repair and condition with obligations with respect to exterior maintenance, landscaping, the nature strip, et cetera. More importantly, perhaps to address the Court’s previous judgment, there are provisions regarding association property, and in by-law four, the community association, cl 4.1, is responsible for control, management, operation, maintenance, and repair of the community property, and the community property includes, on p 19 of 37 in by-law nine, particularly 9.3(b), the stormwater drainage service,

124. In order to satisfy the flooding concerns raised by residents and on the last occasion, from an engineer, regarding an indication there may be a post-development stormwater drainage issue for downstream property, the Applicant relies on a number of Civil Engineering Plans (Ex B, Tab 40) which I set out as follows:

1. Drawing 300 Issue E dated 2 May 2024 titled “Site Layout Plan” which includes the following two features in the legend:

1. The first is the red hatched rectangle in the legend described as “Proposed Parapet”. The Proposed Parapet is shown on the southern side of the private road adjacent to the, or upstream of the existing stormwater easement which flows away to the southwest.

2. The second feature in the legend is the green dashed line described “Proposed Retaining Wall”. The green dashed line appears in the southeastern corner of the site on the southern side of the private road.

2. Drawing 305 Issue B dated 29 February 2024 titled “Driveway Longitudinal & Typical Sections” which includes the driveway typical section shown with the proposed OSD tank, and on the right-hand side or southern side of that tank is the proposed parapet of 400 millimetres in height and you can see the inlet pit which junctions with the existing part in the easement downstream. The Parapet is designed to capture water in the event that the OSD tank surcharges.

3. Drawing 401 Issue A dated 11 July 2023 titled “OSD Details and Drains Calculation” which shows at the bottom of the page in plan view of the OSD in the private road, looking down on it with its inlet pipes and the Class C (heavy duty) heelproof hinged galvanised mild steel grate frame fitted with childproof locking devices in the road surface itself into which water will drain. The treatment around the discharge of the OSD tank into the existing 800 millimetre pipe is shown, which then travels later southwest.

125. The Proposed Development is supported by a Flood Impact Assessment, (Ex B, Tab 44) which at Fig 3.6 addresses the submission of Mr French and Mr Gibson who live down stream and demonstrates that there will be improvement in downstream flooding. The Applicant submits, and I accept that

“flooding is identified with the high hazard and its contained within the subject site, and it’s in this that the hazard is not affecting the dwellings on the subject site, nor is it affecting downstream property. And there is no contention about flood”. (Transcript 25 September 2024, p 40)

126. In further satisfaction of the flood impact concerns, the Proposed Development includes an instrument pursuant to s 88B of the Conveyancing Act 1919 (s88B Instrument) (Ex A, Tab 30) which upon registration in accordance with condition 40 will create a number of easements including an easement for drainage of water identified by the letter C on Sheet 2 of 4 of the 9 lot subdivision (Ex L) which carries out that interception function and feeding into the OSD via the inlet pipes.

127. The Applicant agrees that the lot layout and position of the easternmost dwelling are not precisely depicted on the stormwater plans. I am satisfied that the dwelling construction is set out in the architectural plans for which the Applicant seeks consent which show at Drawing DA008 the footprint of dwelling 7B is staggered in relation to the footprint of dwelling 7A whereas in the stormwater plan, that amendment was not picked up and dwellings 7A and 7B appear to be next to each other. I am further satisfied that it is still intended to catch the roof water in the drainage system as shown in the Civil Engineering Plans and approval is sought for the stormwater and drainage management proposed.

128. Accordingly, I have the sufficient level of comfort that flood impact and stormwater management has been documented with the required degree of certainty.

129. In relation to maintenance of the OSD tank, from time to time in accordance with the maintenance schedule in the Community Management Statement (Ex A, Tab 14), the community association has to organise for that pit to be inspected, maintained and cleaned including cleaning out of any sediments. I am satisfied that there are appropriate and adequate arrangements to keep that facility clean and functioning and will be enforced by conditions of consent.

Height of building development standard

130. As part of Contention 3, the Respondent contends at particular (d) that there is not adequate information to demonstrate compliance with the maximum height of building (HOB) development standard of 8.5m pursuant to cl 4.3 of the CBLEP.

131. The Applicant relies on the architectural drawings in Ex B at Tab 38, including DA 530 Rev F dated 6 May 2024 titled Height Limit Diagram. The Applicant submits that “this diagram, which is taken from survey information and then converted with computerised detail to project a blanket over the site to an 8.5 metre height, shows that none of the buildings protrude above that height.” (Transcript 25 September 2024, p 35). The Survey dated 31 March 2023 is in evidence in Ex A at Tab 31.

132. The Respondent submits that drawing the red line does not provide the full answer (Transcript 25 September 2024, p 61 at 17).

133. Notwithstanding that not all the building elevations show the 8.5m height plane (JER at par 53, Ex 3), I am satisfied that the Height Limit Diagram, prepared from the data in the Survey, together with the 14 sections in Drawings DA300 Rev F dated 6 May 2024 to DA306 Rev F dated 6 May 2024 are sufficient to demonstrate that the Proposed Development complies with the HOB development standard.

Landscaping

134. In respect of landscaping there is no control for deep soil or landscape on dual occupancy development whereas there is a control for the single detached dwelling house with which the Proposed Development complies. The controls relating to site coverage and deep soil relate only to the proposed Lot 3 (dwelling house) and I am satisfied that Drawing DA-105 Rev F demonstrates compliance with these controls.

Conclusion

135. For all the reasons given in this judgment I conclude that the Proposed Development satisfies the jurisdictional prerequisites and I find is not a gross overdevelopment as described by Ms Englund. On merit the Proposed Development warrants the grant of consent subject to conditions.

Conditions of consent

136. The parties were not able to agree on Draft/Proposed Conditions of Consent and filed a number of competing versions. Ex J: Applicant’s Proposed/Draft Conditions with track changes and Ex 3: Respondent’s Proposed/Draft Conditions in track changes responding to the Applicant’s changes sought.

137. Notwithstanding the substantial track changes, my review of the competing sets of conditions reveals, and the Applicant submits, that the majority of the changes sought by the Applicant relate to repetition or duplication of conditions. The Respondent, appropriately, has agreed to some of the changes and has otherwise retained the structure of the drafted conditions to address each of the steps of the Proposed Development which results in apparent but not actual duplication of conditions. I have adopted the Respondent’s conditions with a few minor changes including the description of the development for which consent will be granted.

Orders:

138. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application DA-1124/2023 for demolition including tree removal and remediation of land, community title subdivision of land and construction of six dual occupancies, one dwelling house, ancillary driveway, car parking, stormwater infrastructure and landscaping works, and the dedication of land to Council for public open space, and further community title subdivision of 6 dual occupancies, at Lot 1 in Deposited Plan 566982, known as 30 Trevenar Street, Ashbury subject to the conditions of consent in Annexure A.

3. All exhibits are retained except Exhibit 5 which is to be returned to the Respondent.

E Espinosa

Commissioner of the Court 

Annexure A

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Decision last updated: 20 November 2024