Kain Projects Pty Ltd v Randwick City Council

[2009] NSWLEC 1407

Land and Environment Court

of New South Wales

CITATION:	Kain Projects Pty Ltd v Randwick City Council [2009] NSWLEC 1407
PARTIES:	APPLICANT Kain Projects Pty Ltd RESPONDENT Randwick City Council
FILE NUMBER(S):	10501; 10502 of 2009
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- two separate appeals for same site - modification of consent to remove condition requiring undergrounding of power cables and refusal of the construction of 2 x single storey dwellings with car parking and associated works and the Torrens Title subdivision into three lots - incompatibility with the character of the locality - amenity impacts - breach of floor space ratio requirement
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 1998
CASES CITED:	Stockland Developments Pty Ltd v Manly Council [2004] NSWLEC 472
DATES OF HEARING:	24, 25 November 2009
DATE OF JUDGMENT:	4 December 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr P Jackson, solicitor SOLICITORS Pikes Lawyers RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

4 December 2009

10501 and 10502 of 2009 Kain Projects Pty Ltd v Randwick City Council

JUDGMENT

1 COMMISSIONER: These are two separate appeals that relate to the same property at 29W Finucane Crescent, Matraville (the site). Appeal No 10501 of 2009 is an appeal against the refusal by Randwick City Council (the council) of an application to modify a development consent and Appeal No 10501 of 2009 is an appeal against the refusal by the council of a new development application on the site.

The site

2 The site was formerly owned by Sydney Water and was the location of a sewer easement containing a sewer pipeline and other infrastructure used by Sydney Water. Prior to the use by Sydney Water, the site was used as a waste incinerator.

3 The site is irregular in shape and consists of two main areas within the single lot. The eastern area of the site was previously used for the incinerator and is generally rectangular in shape with a frontage of the 60.9 m to Kain Avenue and a frontage of 52.4 m to Finucane Crescent and an approximate area of 3335 sq m. The western area of the site was previously used as a secondary access handle from Lawson Street to the incinerator. It is long and narrow with a width ranging between 6 m at the Lawson Street frontage, 10.7 m at the midpoint and 13 m at the point where it joins the eastern area of the site. It has a length of approximately 167 m and an area of 2069 sq m.

4 The site and adjoining area consists predominantly of detached residential dwellings and some dual occupancy developments.

Background

5 DA/1069/2007 provided for the construction of a multi-unit housing development consisting of 19 dwellings, comprising 16 x part 2 and 3-storey townhouses on the eastern area of the site, a two-storey dual occupancy development and a single storey dwelling on the western area of the site, basement and at grade parking, landscaping, associated site works and strata subdivision on the site.

6 Council granted consent on 22 July 2008 but imposed deferred commencement conditions of consent which required the deletion of the dual occupancy dwelling and the dwelling house in the western area of the site (deferred commencement condition 1(a)) and required that the area to be replaced with landscaped open space for common use of the residents of the proposed development (deferred commencement condition 2(a)).

7 The deferred commencement conditions have been satisfied and an operative consent was granted on 23 February 2009.

Appeal No 10501 of 2009

8 This is an appeal against the refusal of an application to modify DA/1069/2007. The modification application seeks the deletion of condition 43 which states:

43. The applicant shall meet the full cost of the overhead power lines and telecommunication cables located in the vicinity of the development site to be relocated underground and all redundant power poles to be removed. The applicant shall liaise directly with the relevant service utility authorities to organise for the wires/cables to be relocated. All wire cables must be relocated underground to the satisfaction of the relevant service utility authority prior to the issuing of an occupation certificate for the development.

The evidence

9 Mr Stuart McDonald provided evidence for the council and Mr Stuart Harding provided evidence for the applicant. Mr Rigg, for the council, submits that the requirement for the undergrounding of power lines was in essence, a policy, having been generated by a resolution of the council. Mr McDonald states that the requirement for undergrounding of power lines for development exceeding $2 million has been in place and implemented by the council since November 2005. The requirement is applied through the imposition of a standard condition. As the site is the largest single site in the locality and has two street frontages, the undergrounding of the power lines will have a major impact in enhancing the future character of the locality.

10 Mr Harding has a different view. He states that the application of the policy is ad hoc and serves no real long-term benefits for infill sites. The cost of around $180,000 is an unnecessary burden on the applicant and also the undergrounding of the power lines will result in a situation where power lines go above and below ground level at various intervals along the same street. Mr Harding supports the deletion of condition 43.

Findings

11 The requirement for the undergrounding of power lines for development exceeding $2 million comes from a council resolution in November 2005. The resolution, as I understand, was not generated by a report from a council officer, but was generated directly from the council meeting.

12 If the requirement for the undergrounding of power lines is considered as a council policy as suggested by Mr Rigg (and I accept that this is the highest status that could be attributed to this requirement ) then the policy falls squarely within the comments made by McClellan CJ in Stockland Developments Pty Ltd v Manly Council [2004] NSWLEC 472. His Honour acknowledges that a council policy is a relevant "public interest" consideration under s 79C(1)(e) of the Environmental Planning and Assessment Act 1979 (the EPA Act) however the weight to be given to a policy will depend on a number of matters. These are identified in par 92 as:

• the extent, if any, of research and public consultation undertaken when creating the policy,
• the time which the policy has been in force and extent of any review of its effectiveness,
• the extent to which the policy has been departed from in prior decisions,
• the compatibility of the policy with the objectives and provisions of any relevant environmental planning instruments and the development control plans,
• the compatibility of the policy with other policies adopted by a council or by any other relevant government agency, and
• whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.

13 If the policy is considered against those matters identified in Stockland, then I accept the conclusions of Mr Harding for a number of reasons. First, the policy was not the subject of any research or public consultation when it was created. Second, there has been no review of its effectiveness. Third, there is no evidence to suggest that the policy relates to any provisions of any council environmental planning instrument or DCP. Fourth, the policy could be regarded as flawed given the questionable criterion for implementation when tested against its principle aim of improving visual amenity. For example, the undergrounding of cables may be appropriate for a development that is less than $2 million if it was located in an area where there was a need for high levels of visual amenity. In this case, the development exceeds $2 million but the improvement to the visual quality of the locality is minimal because the undergrounding of the cabling occurs over a relatively short length and the existing overhead cabling in the surrounding streets is to remain. In my view, the cost of undergrounding the cables cannot be justified on the minimal improvement in visual quality in the locality.

14 Even though the evidence suggests that the council has consistently applied the standard condition for undergrounding of cables, in my view, this is insufficient justification for the condition given the inadequacies of the policy identified in the preceding paragraphs.

15 For these reasons, condition 43 can be deleted.

Appeal No 10501 of 2009

16 This is an appeal against the refusal by the council for the construction of 2 x single storey dwellings with car parking and associated works and the Torrens Title subdivision of the site into three lots.

17 Proposed Lot 1 is rectangular shaped area to the east of the site and has an area of 3365.49 sq m. No development is proposed on Lot 1 as part of this development application. Proposed Lots 2 and 3 are located in the westerly area of the site and it is proposed that each lot will contain a single storey dwelling. Lot 2 has an area of 1368.26 sq m and Lot 3 has an area of 951.4 sq m.

Relevant planning controls

18 The site is within Zone No. 5 (Special Uses Zone) under Randwick Local Environmental Plan 1998 (LEP 1998). Clause 17(3) provides that "dwellings" and "dwelling houses" are permissible within the zone, with development consent. The relevant zone objective is:

(f) to allow for the redevelopment of land no longer required for a special use

19 Clause 9 provides that consent may only be granted after consideration of the extent to which the proposed development is consistent with the general aims of plans and the specific objectives of the zone.

20 Clause 32(5) provides for a maximum floor space ratio (FSR) of 0.5:1 for dwellings and multi-unit housing in Zone No 5.

21 Clause 37A provides specific requirements for development in Zone No 5. The clause states that consent can be granted only if the Court is satisfied that "the proposed development is compatible with the character of the locality and will not adversely affect the amenity of nearby and adjoining development". The clause further states:

Purpose: To ensure that consideration is given to the impact of development proposals within the Special Uses Zone on other development and uses in the locality. This clause should reduce the potential for adverse impact on nearby development and on the amenity and character of the locality.

The contentions

22 The contentions raised by the council are:

1. whether the western section of the site is an integral part of the site,
2. whether the FSR is excessive,
3. whether the proposal is inconsistent with the character of the area,
4. whether the proposal has unacceptable amenity impacts on adjoining properties and the future residents of the proposed dwellings, and
5. whether any consent granted would be in breach of s 80(2) and/or s 83D(2) of the EPA Act.

Is the western section of the site is an integral part of the site?

23 Mr Jackson, for the council, submits that the western and eastern sections of the site should be treated as two separate parts for the purposes of assessing the development potential of the site. Mr Harding agrees and states that the 16 townhouse development on the eastern part of the site is appropriate for an infill development. The approval by the council supports this conclusion. The proposed two dwellings on the western part of the site are so removed from the eastern part that they do not influence the development on the other part of the site.

24 Mr McDonald disagrees and states that the long and narrow western part of the site was, and remains an integral part of the approved development. With this area being approved only for private landscaped open space to service the approved dwellings on the eastern part of the site, the scale form and density of the proposed dwellings on this area should not be approved.

Floor space ratio

25 There was agreement between Mr McDonald and Mr Harding on the FSR calculations although differing conclusions on the impact of the FSR.

26 DA 1069/2007, as submitted to the council, had an FSR of 0.53:1 but with the conditions requiring the removal of the dual occupancy and residential dwelling from the western part of the site, the FSR was reduced to 0.47:1, thereby satisfying the FSR requirement in cl 32(5) of LEP 1998. While not considered relevant by Mr Harding, Mr McDonald calculates the FSR of the eastern part of the site (containing the 16 townhouses) at 0.79:1. Mr McDonald states that such a departure from the development standard should not be approved. Mr Harding places far less emphasis on the numerical FSR standard, given the large size of the site and the higher FSR’s achieved by surrounding residential development.

Compatibility with the character of the locality

27 Mr McDonald states that the proposal would be out of character because the proposed two lots have no clear legibility to the street and are effectively landlocked with a small strip of land 1 m wide, fronting Finucane Crescent. Lot 2 and the proposed dwelling rely on shared access across the driveway that services the townhouse development. In his opinion, subdivision to allow a residential dwelling lot hidden at the end of a driveway servicing a medium density development is not characteristic of the subdivision pattern of the locality. Further, Lot 3 provides a narrow 6.095 m wide entrance and results in the proposed house not being legible when viewed from Lawson Street. The appearance is also dominated by a double garage that takes up more than 80% of the front elevation. In Mr McDonald's opinion, the access handle was originally subdivided for a non-residential purpose and did not contemplate the erection of substantial buildings and this is confirmed by the poor relationship with the existing residential dwellings that back on to this part of the site.

28 Mr Harding identifies a number of existing battle axe lots in the locality that have no substantial street frontage. In his opinion, this supports the proposed subdivision. He considers that there is not much difference when the proposed subdivision is compared to other battle axe developments. Mr Harding maintains that all land must be considered for its suitability and any assumptions that there would be no development on the land have been overtaken by the well accepted policies of urban infill and sustainable use of land. Even if this area of the site were not used for the construction of dwellings, it would be ancillary to the use of the townhouse development and would have likely contained some structures. The proximity of existing dwellings to the dwellings proposed in the subdivision is not an uncommon outcome for development in the area, particularly when there are no unacceptable amenity consequences. In his opinion, there are no reasons why the development should be refused based on the existing subdivision pattern of the area and any impacts on the existing character.

Impact on residential amenity

29 Mr McDonald identifies potential impact on the residential amenity of the existing dwellings at 8 Hurley Crescent through unacceptable bulk and scale because of the fill required for the proposed new dwelling adjoining this property. Mr McDonald also identifies that the existing properties at 29A Lawson Street and 16 Hurley Crescent have the potential to create unacceptable privacy impacts on the private open space areas of the proposed new dwellings because of elevated viewing positions within these properties. While accepting that these are unacceptable impacts, Mr McDonald states that they are not sufficient reasons to refuse the application.

30 Mr Harding took the view that the relationship between existing residential properties and the proposed dwellings was acceptable and that there were no amenity impacts that would require the amendment of the proposed dwellings.

Findings

31 The planning controls that govern development on the site are limited because of the zoning of the site. The proposed development is permissible within this zone, with consent, however development is limited by the development standard in cl 32(5) that provides for a maximum FSR of 0.5:1 (but potentially subject to an objection under State Environmental Planning Policy No 1 – Development Standards (SEPP 1)) and the qualitative requirements in cl 37A that require development to be compatible with the character of the locality and not adversely affect the amenity of nearby and adjoining development.

32 Contrary to the submission of Mr Jackson and the evidence of Mr Harding, I am satisfied that there are no planning reasons why the site should be regarded as two separate areas for the purposes of development. Both areas form part of the same lot and as such should be considered as one lot for the purposes of development. The fact that the western area of the site is narrow and elongated is simply a constraint that must be addressed in the overall planning of the site. The overall density for the site should take into account any constraints and this is reflected in the requirements of cl 30(5) where the FSR is stated as a maximum. The clause does not require the maximum FSR to be achieved. Potentially, the qualitative requirements in cl 37A could dictate a FSR below the maximum, in some circumstances.

33 There was agreement that the two dwellings on Lots 2 and 3 satisfy the FSR requirements in cl 32(5) (0.26:1 and 0.24:1, respectively) so for the development to proceed, the Court must make a positive finding of compatibility with the character of the locality and the amenity of nearby and adjoining development. A negative finding on either of the two tests in cl 37A must see the development application refused.

34 The latter amenity test was addressed by Mr McDonald and Mr Harding who differed in their conclusions on the potential amenity impacts of the proposed dwellings but even adopting the more problematic position of Mr McDonald, the amenity impacts were not of such severity as to warrant the refusal of the development application. Based on the site view and an understanding of the relationship between the proposed dwellings in the adjoining and nearby residential properties, I concur with this conclusion.

35 The test of compatibility with the character of the locality requires an assessment of the existing character, including what is reasonably anticipated by the councils planning controls and a comparison with the proposed development. I have taken the term compatible to mean:

1. Capable of existing together in harmony. 2. Capable of orderly, efficient integration with other elements in a system.
(Macquarie Dictionary, Second Edition).

36 The area adjoining the site is zoned Residential 2(a). An understanding of the form of development that is anticipated within the Residential 2(a) zone can be found in the councils planning controls. LEP 1998 provides for a minimum 450 sq m allotment sizes with a frontage of at least 12 m (cl 30). The maximum FSR for a building within the Residential 2(a) zone is 0.5: 1 (cl 32). Councils Dwelling Houses and Attached Dual Occupancies Development Control Plan (the DCP) provides more specific controls for FSR with sites up to 300 sq m having an FSR of 0.6 5:1 and sites greater than 600 sq m having an FSR of 0.5: 1 (cl 4.2).

37 Single detached older style low-density residential dwellings are the predominant form of development in the locality but with some scattered dual occupancy developments and battle axe subdivisions. Dwellings are located near the street frontage with generous side setbacks. The residential development surrounding the site clearly pre-dates the requirements in LEP 1998 and the DCP however the existing residential development is consistent with that anticipated by these controls although the existing lot frontages (based on plans provided to the Court) appear to be around 15 m while the general area of the residential lots appears to be considerably larger than 450 sq m and around 600 sq m. I note that cl 30 provides a minimum area of 450 sq m. The existing lots are largely rectangular and regularly shaped with a consistent frontage to depth ratio, except in locations where the lots front a cul-de-sac or are near oblique angled road intersections. On my observations from the site view and the documentation provided to the Court, and taking into account the size of dwellings and the size of the existing allotments, I am satisfied that it is unlikely that the majority of the existing dwellings would exceed an FSR 0.5: 1.

38 This character needs to be compared to the proposed lots and dwellings. The proposed lots have a width between 6 m at the Lawson Street frontage, 10.7 m at the midpoint and 13 m at the point where it joins the eastern area of the site. Lots 2 and 3 are significantly narrower than the majority of existing lots in the locality and less than the minimum 15 m required under LEP 1998. The length of each lot, around 85 m, is also considerably longer than the lots in the locality. The proposed dwellings, each with width around 8 m and a length around 40 m, are significantly different to the form of the existing dwellings. For example, the narrow width of Lot 3 and the dominant appearance of the double garage for the dwelling highlights the inconsistency with the character of the existing dwellings in the locality.

39 The subdivision of the western part of the site and the erection of dwellings also provides an uncharacteristic and incompatible relationship between the existing dwellings and the new dwellings. The regular subdivision pattern for the locality provides the opportunity for dwellings to be located towards the street frontage and in most cases, a reasonable setback is provided to the rear boundary. With back-to-back lots, a useful separation is created between dwellings with consequent visual and aural benefits for the occupants of the dwellings. The necessary length of the proposed dwellings dictates that this uncharacteristic relationship affects a relatively large number of dwellings in Finucane Crescent, Lawson Street and Hurley Crescent.

40 I do not accept the conclusions of Mr Harding that simply because the land exists that it is suitable for development. The qualitative requirements in cl 37A provide a higher test than simply the availability of appropriately zoned land.

41 I am satisfied that proposed Lots 2 and 3, together with their respective dwellings could reasonably be seen as being incompatible with the character of the locality and as such, development consent must be refused pursuant to cl 37A of LEP 1995.

42 For completeness I will briefly deal with the other issues in dispute.

Section 80(2) of the EPA Act

43 Section 80(2) of the EPA Act states:

"...the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, and environmental planning instrument or the regulations, whether arising in relation to that or any other development."

44 Section 122 of the EPA Act states:

(a) reference to a breach of this Act is a reference to:
(i) a contravention of or failure to comply with this Act, and
(ii) a threatened or an apprehended contravention of or a threatened apprehended failure to comply with this Act, and
(b) a reference to this Act includes a reference to the following:
(iii) a consent granted under this Act, including a condition subject to which a consent is granted...."

45 Mr Rigg submits that DA/1069/2007, as submitted to the council, had a FSR of 0.55:1, which did not comply with the maximum FSR standard of 0.5:1. In considering the development application, the council imposed deferred commencement conditions of consent which required, inter alia, the deletion of the dual occupancy dwelling and the dwelling house in the western section of the site and required that the area to be replaced with landscaped open space for common use of the residents of the proposed development. The deletion of the dual occupancy and dwelling house resulted in the FSR satisfying the 0.5:1 development standard.

46 Mr Rigg submits that the applicant has not sought to amend, modify or delete deferred commencement conditions 1(a) and 2(a) and council (having received amended plans which satisfied this condition), granted an operative consent on 23 February 2009. DA 18/2009 now seeks the erection of two dwelling houses on the western area of the site where council imposed the deferred commencement conditions of consent that required the deletion of the dual occupancy dwelling and the dwelling house.

47 Mr Rigg submits that the proposed development is in contravention of conditions 1, 71(b), 87 and 88 in DA/1069/2007 and the FSR provisions in cl 32 of LEP 1998. For any approval of the proposed development the applicant must surrender DA/1069/2007. If such a condition of surrender is not imposed then the consent would be issued in breach of s 80(2). Support for such a proposition is found in Rutland v Shoalhaven City Council (1997) 94 LGERA 370, Laidlaw Pty Limited v Cleverley (1972) 25 LGERA 196 and Woollahra Municipal Council v Banool Developments Pty Limited (1973) 129 CLR 138.

48 While Mr Jackson did not accept the submissions of Mr Rigg, I am satisfied that if the merits warranted the approval of the development application, the approval would be in breach of s 80(2). As I understand, the applicant proposes to rely on DA/1069/2007 that provides the approval for the 16 townhouses and DA/18/2009 for the construction of 2 x single storey dwellings with car parking and associated works and the Torrens Title subdivision of the site into three lots. The effect would be to have a development that would be inconsistent with DA/1069/2007 because the approval of DA/18/2009 will allow the erection of two dwellings on the western part of the site where previously this area was considered unacceptable for development in the approval of DA/1069/2007.

49 This, in my view, would invoke the provisions of s 80(2), through s 122(b)(ii) where specific reference is made to a condition subject to which a consent is granted and require the Court to refuse DA/18/2009.

50 Mr Rigg also relevantly raises the issue of SEPP 1. If the development were to proceed in the manner suggested by the applicant, then the FSR for the site would be around 0.53:1. This exceeds the FSR requirements in cl 32(5) of LEP 1998. While Mr Jackson submitted that there was no legal obligation for the submission of an SEPP 1 objection to address the breach of the development standard, it seems peculiar, in the least, that the proper and normal planning approach to address an exceedance of a development standard should somehow be circumvented by the approach adopted by the applicant. I do not accept the submission of Mr Jackson that the process normally followed through the SEPP 1 objection process has essentially been followed but through the normal assessment of the development application.

51 This, in my view, should also invoke the provisions of s 80(2), being a contravention of the EPA Act.

Section 83D of the EPA Act

52 Section 83D of the EPA Act states:

83D Status of staged development applications and consents

(1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application.
Note: Applicable provisions in respect of staged development applications include provisions relating to designated development, integrated development and regulations made under section 105.
(2) While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent.
(3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application .

53 Mr Rigg submits that the Statement of Environmental Effects and DA 1069/2007 sought to waive the Master Plan requirement in cl 40A of LEP 1998. The consequence of DA 1069/2007 being made under s 83C makes the provisions of s 83D(2) operative such that whilst the determination remains in force, the determination of any further development application in respect of that site cannot be consistent with that consent.

54 Pursuant to s 83D(2), Mr Rigg submits that the proposed development application is inconsistent with DA 1069/2007.

55 I am satisfied that the matters raised by Mr Rigg do not want of the refusal of the development application. The development and the Master Plan requirements in LEP 1998 are addressed in the council officers report of 22 July 2008, in response to a public submission, where it states:

Application has not provided information required to satisfy Section 83B and 83C of the EP&A Act

The applicant's Statement of Environmental Effects clearly states that "Clause 83C of the Act relates to stage development applications. This clause allows a staged development application to include all the necessary details sufficient to enable development consent to be granted without need for further approvals. This application seeks that ultimate development consent for all aspects of the development. " (page 4). The applicant's Stage DA approach, and the acceptability of this approach in terms of the relevant provisions of the EP&A Act, is confirmed in Section 7 of this report. The subsequent assessment of the Staged DA pursuant to Section 79C of the EP&A Act, as detailed in Section 10 of this report, also confirms that requisite details and information have been provided with the staged DA such that, if consent is granted for the subject DA, no further consent relating to any subsequent stages for the proposal will be needed. Additionally, contrary to the claim of the objector in this case, the Staged DA submission is considered to have adequately addressed the relevant matters listed in Clause 40A(5) of the Randwick LEP 1998 normally required to be considered in the preparation of master plans. This is validated by the degree of detail provided with the DA pursuant to Section 83B (3)(b) of the EP&A Act.
Orders

56 For Appeal No 10501 of 2009, the orders of the Court are:

1. The appeal is upheld.
2. DA/1069/2007 for the construction of a multi-unit housing development at 29W Finucane Crescent, Matraville is modified by the deletion of a condition 43 and is approved subject to the conditions in Annexure A.
3. The exhibits are returned.

57 For Appeal No 10502 of 2009, the orders of the Court are:

1. The appeal is dismissed.
2. DA/18/2009 for the construction of 2 x single storey dwellings with car parking and associated works and the Torrens Title subdivision into three lots at 29W Finucane Crescent, Matraville is refused.
3. The exhibits are returned.
_____________
G T Brown
Commissioner of the Court