Kidd v Georges River Council

[2019] NSWLEC 1296

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kidd v Georges River Council [2019] NSWLEC 1296
Hearing dates:	17 and 18 June 2019
Date of orders:	09 July 2019
Decision date:	09 July 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: 1) The appeal is dismissed. 2) The exhibits are returned, with the exception of Exhibits A, B, G and 1.
Catchwords:	Development Application – subdivision of land – one lot into two Torrens title lots – is the Applicant’s written request under cl 4.6 of Kogarah LEP well founded – is compliance with the standard unreasonable or unnecessary – whether the Applicant’s environmental planning grounds are sufficient
Legislation Cited:	Environmental Planning and Assessment Act 1979 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248; [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Council [2017] NSWLEC 1734 Initial Action Pty Ltd v Woollahra Council [2018] NSWLEC 118 Parrott v Kiama [2004] NSWLEC 77 revised - 16/03/2004 Peric v Randwick City Council [2018] NSWLEC 1509 Randwick City Council v Micaul Holdings Ltd (2016) 225 LGERA; [2016] NSWLEC 7 SNL Building Construction Pty Ltd v Lake Macquarie City Council [2019] NSWLEC 114 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Australian Standard AS4970-2009 Protection of trees on development sites Kogarah Development Control Plan 2012
Category:	Principal judgment
Parties:	Marilyn Kidd (Applicant) Georges River Council (Respondent)
Representation:	Solicitors: P Rigg, Peter R Rigg (Applicant) D Le Breton, HWL Ebsworth (Respondent)
File Number(s):	2018/214451
Publication restriction:	No

Judgment

1. COMMISSIONER: Marilyn Kidd (the Applicant) has appealed the refusal by Georges River Council (the Respondent) of her development application DA 2017/0625 for the subdivision of an existing dual frontage single allotment into two new Torrens title allotments (the proposed development) at 70 Kyle Parade, Kyle Bay (the Subject Site).

2. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court’s jurisdiction under the Land and Environment Court Act 1979 (the LEC Act).

3. The Subject Site is zoned R2 Low Density Residential under the provisions of Kogarah Local Environmental Plan 2012 (KLEP), and the subdivision of land is a permissible development on the Subject Site, with consent, under the provisions of cl 2.6 of KLEP.

4. At the commencement of the hearing, the Court completed an inspection of the Subject Site. No objectors sought to make submissions to the Court in relation to the appeal. The Applicant drew the Court’s attention to two letters of support that had been provided by the owners of adjoining lots.

5. At the commencement of the hearing the Applicant sought leave to rely on amended plans, and leave was granted without objection. Under the amended plans the Applicant proposes that the subdivision of the Subject Site would result in two allotments identified in this appeal as:

1. proposed Lot 1, which would have an area of 453m2; and

2. proposed Lot 2, which would have an area of 460m2.

6. The proposed Lots 1 and 2 both have an area that is less than the minimum subdivision lots size development standard applicable to the Subject Site under the provisions of cl 4.1 of KLEP (see below at [17(4)]) , which is 550m2. As a consequence, the Applicant has provided a written request, prepared under the provisions of cl 4.6 of KLEP, to vary the minimum subdivision lot size development standard applicable to the Subject Site.

7. The Applicant’s proposed development includes the following components:

1. retention of 4 mature trees, identified during the proceedings as Trees T6, T12, T13 and T14;

2. the removal of 10 trees;

3. demolition of a carport, garage and WC adjoining the eastern façade of the dwelling on the Subject Site;

4. construction of new cross overs and driveways to each of proposed Lots 1 and 2;

5. retention of the existing dwelling on the Subject Site, within proposed Lot 2.

8. The Applicant’s development application does not seek consent for construction of a dwelling on proposed Lot 1.

9. However, as per Parrott v Kiama [2004] NSWLEC 77 (revised - 16/03/2004), (hereafter referred to as Parrott) the Court has applied a planning principle in relation to circumstances in which a residential subdivision application is sought and the grant of consent to that application would impose constraints on future development. In Parrott, the then Senior Commissioner said (at [17]):

“I have adopted the planning principle that a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them.”

10. Consistent with this planning principle, and in recognition of the fact that the development application in this case seeks consent for a subdivision in which the proposed allotments are smaller than usual, and includes potential impacts to environmentally sensitive features, the Applicant has provided a conceptual plan for a dwelling on proposed Lot 1, to assist in the evaluation of the proposed development and the potential future use of proposed Lot 1.

11. In April 2019, the Applicant filed a notice of motion seeking leave to amend its development application and to rely on amended plans, and that leave was granted.

12. At commencement of this hearing, the Applicant again sought leave to amend further its development application and to rely on further amended plans, and again leave was granted, without objection.

Statutory context

Environmental Planning and Assessment Act 1979

13. The objects of the of the EP&A Act are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

14. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

15. Section 4.15(3A) of the of the EP&A Act further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

…

16. Section 4.16 of the EP&A Act, concerning the determination of develop,ent applications provides, inter alia, that:

(1) General

A consent authority is to determine a development application by:

(a) granting consent to the application, either unconditionally or subject to conditions, or

(b) refusing consent to the application.

(2) Despite subsection (1), 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, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

Kogarah Local Environmental Plan 2012

17. Development on the Subject Site is subject to the provisions of KLEP which commenced on 8 February 2013. It provides the statutory framework for land use within the former City of Kogarah Council area. The following provisions of KLEP are of particular relevance in this appeal:

1. Clause 2.1, which establishes land use zones within the area covered by KLEP.

2. Clause 2.3, under which the Subject Site is zoned R2 Low Density Residential. The objectives of this zone are to:

• provide for the housing needs of the community within a low density residential environment.

• enable other land uses that provide facilities or services to meet the day to day needs of residents.

3. Clause 2.6 of KLEP which provides that land to which KLEP applies, including the Subject Site, may be subdivided, but only with development consent.

4. Clause 4.1, concerning minimum subdivision lot size, which has the following objectives:

(a) to promote the efficient use of land,

(b) to ensure that subdivision does not prevent the orderly development of land,

(c) to require adequate street frontages and dimensions for standard and battle-axe lots,

(d) to ensure that the intensity of development is appropriate to the land’s environmental capability.

1. Clause 4.1 also provides:

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

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

2. The minimum lot size development standard applicable to the Subject Site is 550m2.

5. Clause 4.3, concerning the height of buildings, and which requires under subcl (2) that the height of a building on any land is not to exceed the maximum height shown on the land on the Height of Buildings Map. The objectives of the height of buildings development standard are:

(a)  to establish the maximum height for buildings,

(b)  to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas,

(c)  to provide appropriate scale and intensity of development through height controls.

1. The Height of Buildings Map establishes that the maximum height of any building on the Subject Site is 9.0m.

6. Clause 4.4, concerning floor space ratios, and which requires under subcl (2) that the maximum floor space ratio (FSR), for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. That Map establishes that the maximum FSR applicable to the Subject Site is 0:55:1. This FSR would remain applicable to the proposed Lots 1 and 2, should the Applicant’s proposed development be approved.

7. Clause 4.6, which makes provision for proponents to seek an exception to a development standard. It provides as follows:

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

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Secretary must consider:

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

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

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

(6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if:

(a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or

(b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.

Note. When this Plan was made it did not include Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation or Zone E3 Environmental Management.

(7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant’s written request referred to in subclause (3).

(8) This clause does not allow development consent to be granted for development that would contravene any of the following:

(a) a development standard for complying development,

(b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated,

(c) clause 5.4.

18. The Applicant has prepared a written request under the provisions of clause 4.6 of KLEP seeking to vary the application of the minimum subdivision lot size development standard under cl 4.1 of KLEP in relation to its proposed development.

Kogarah Development Control Plan 2012

19. The Introduction to Kogarah Development Control Plan 2013 (KDCP) states that it supports the provisions of KLEP 2012 by providing additional objectives and development controls to enhance the function, appearance and amenity of development and to ensure that Kogarah City is a vibrant community and desirable place to live, work and visit.

20. The aims of KDCP are to:

• Have a single document that supports Kogarah LEP 2012;

• Provide objectives and development controls that establish clear guidelines for development in the City of Kogarah;

• Develop a high quality urban environment and built form character in the City of Kogarah;

• Ensure development contributes to the prosperity of the City of Kogarah; and

• Ensure development protects and enhances the natural environment in the City of Kogarah.

21. Part A2 of KDCP provides guidance concerning the requirements for notification of development applications. The Parties agreed that the Applicant’s proposed development had been notified as required under the provisions of Pt A2.

22. Part B2 of KDCP provides guidance in relation to tree management and bushland preservation for the purpose of creating a healthy urban forest which provides significant environmental, social and financial benefits to the community. Part B2 of KDCP has the following objectives:

(a) Ensure the protection of existing trees which contribute to the visual amenity and environment of the City of Kogarah.

(b) Specify the criteria governing the removal or pruning of trees.

(c) Identify responsibilities and requirements with respect to the protection, retention and replacement of trees.

(d) Protect trees within and adjacent to development sites.

(e) Maximise healthy tree canopy coverage across the City of Kogarah.

(f) Ensure an acceptable level of risk with regard to trees so as to protect the safety of the community, private property and public infrastructure assets.

(g) Provide processes which enable and facilitate citizen compliance with

these provisions.

(h) Ensure all applications for tree removal and pruning are assessed on the basis of the best practice tree management principles.

(i) Ensure that Council manages its natural assets to ensure compliance with respect to relevant legislation, and highlight the requirement for the community to conform to the same legislation.

(j) Provide a means for the community to minimise the impact on natural assets/areas affected by development actions on private land.

23. Section 1.1 of Pt B2, concerns tree management requirements in relation to the preservation of trees and vegetation, and states that:

Collectively and individually, trees contribute to the appeal and quality of life in Kogarah. Trees contribute to a healthy and biologically diverse environment by providing elements such as shelter for fauna, climate control and a positive contribution to the streetscape.

Therefore, the retention of trees is very important. However, effective management of trees as a natural resource recognises that the long-term retention of trees depends upon appropriate tree location, species selection, maintenance, general health and condition.

1. Section 1.1 of Pt B2 includes:

1. the following objectives:

Establish the criteria governing the removal or pruning of trees.

2. Ensure that appropriate information is submitted to Council regarding tree management.

3. the following control (Control 2):

Development consent or a Council permit is required to ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree, whether on private or public land, which has:

(i) A height greater than 3.5m, or

(ii) A branch spread exceeding 3 metres in diameter

24. Section 1.3 of Pt B2 concerns trees and development sites and states the following:

Where a DA includes the removal of a substantial tree/trees, an Arborist Report must be submitted in accordance with Australian Standard AS 4970- 2009: Protection of Trees on Development Sites. This report must substantiate the tree works, removal, pruning, protection and/or ongoing management of affected trees.

As part of the development assessment process, a Site Analysis must be undertaken to identify site constraints and opportunities, including trees located on the site and neighbouring sites. In planning for a development, consideration must be given to the building/site design so that suitable trees are retained. Council does not normally allow the removal of trees to allow a development to proceed.

Contentions

25. As noted above at [12], at the commencement of the hearing, the Applicant sought, and was granted, leave to amend its development application and rely on amended plans. The plan upon which the Applicant now relies, tendered during the hearing as Exhibit A, amended a plan provided by the Applicant in an affidavit of Peter Rigg, dated 28 February 2019, and for which leave was granted by the Court on 7 March 2019.

26. That affidavit was tendered as evidence at the hearing (Exhibit C) and included the Applicant’s written request under cl 4.6 of KLEP to vary the minimum subdivision lot size development standard under cl 4.1 of KLEP.

27. As noted previously (see above at [10]), that affidavit included concept plans for the proposed subdivision that included a concept design for a dwelling on proposed Lot 1, and proposed future garaging and carport arrangements for both proposed Lots 1 and 2.

28. That further amended plan, upon which the Applicant now relies (Exhibit A), includes:

1. a proposed plan of subdivision for the Subject Site which maintains the configuration and areas of proposed Lots 1 and 2;

2. the demolition of an existing carport and garage on the Subject Site;

3. concept plans for the ground and first floors of a new dwelling that might be placed on proposed Lot 1, inclusive of a single garage, and with details of the location of a vehicle crossing on Kyle Parade. These plans differ from those upon which the Applicant previously relied in at least the following ways:

1. the dimensions of the garage on proposed Lot 1 are reduced compared with the Applicant’s previous plan (identified on the plan now as 3.0m by 5.9m);

2. the entry to the concept dwelling has been moved from a previous central location to a location adjacent to the proposed garage;

3. a porch that had been previously proposed is deleted;

4. the size a proposed first floor, including the size and configuration of an area marked as alfresco area, has been reduced.

5. Amends the plan for the location of a proposed driveway and car spaces on proposed Lot 2.

29. A principal contention in this appeal concerned the proposed breach of the minimum subdivision lot size development standard under cl 4.1 of KLEP, and whether the Applicant’s written request under cl 4.6 of KLEP to vary that standard was well founded. A consent authority, or the Court on appeal, must be satisfied that the Applicant’s cl 4.6 written request is well founded in order to enliven the power to grant consent.

30. Other contentions requiring resolution in the appeal concerned:

1. the suitability of the Subject Site for the proposed development; and

2. the acceptability of potential impacts of the proposed development on certain trees on the Subject Site.

31. Consequently, the specific questions addressed in this appeal, and the order in which I will address them in this judgment, are:

1. is the Applicants’ cl 4.6 written request seeking to vary the minimum subdivision lot size development standard applicable to the Subject Site under cl 4.1 of KLEP well founded?

2. is the Subject Site suitable for the proposed development?

3. are the potential impacts of the proposed development on certain trees on the Subject Site acceptable?

Is the Applicant’s cl 4.6 written request to vary the minimum subdivision lot size development standard applicable to the Subject Site under cl 4.1 of KLEP well founded?

32. The Applicant had provided a written request to vary the minimum subdivision lot size development standard applicable to the Subject Site under cl 4.1. This request had been prepared pursuant to the provisions of cl 4.6 of KLEP, and was tendered as evidence at the hearing.

33. The minimum subdivision lot size development standard in cl 4.1 of KLEP is not a development standard that is expressly excluded from the operation of cl 4.6 of KLEP, and so the Applicant’s written request to vary this standard can be considered in this appeal.

34. The provisions of cll 4.6(3) and 4.6(4) of KLEP include preconditions to the exercise of power to grant consent, and the Court must be satisfied that the preconditions have been met in order for the power to grant consent to be enlivened.

35. In assessing the Applicants’ cl 4.6 written request, I will first summarise the requirements for the consent authority’s consideration of these requests, which also apply to the Court on appeal.

Requirements for consideration of cl 4.6 written requests

36. The approach to considering a cl 4.6 request has been the subject of several judgments of the Court, including in the matter of Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (referred to hereafter as ‘Initial Action’), in which Preston CJ expanded on what he had previously described in Randwick City Council v Micaul Holdings Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7 as the correct approach to assessing whether a cl 4.6 written request is well founded.

37. His Honour said in Initial Action (at [13]) that cl 4.6(4) establishes preconditions that must be satisfied before a consent authority can exercise the power in cl 4.6(2) to grant development consent for development that contravenes a development standard.

38. He further stated (at [14]) that:

“The first precondition, in cl 4.6(4)(a), is that the consent authority, or the Court on appeal exercising the functions of the consent authority, must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii)

…

The formation of the opinions of satisfaction as to the matters in cl 4.6(4)(a) enlivens the power of the consent authority to grant development consent for development that contravenes the development standard.”

39. Finally, the Chief Judge said (at [15]) that:

“The first opinion of satisfaction in cl 4.6(4)(a)(i), is that the applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3).”

40. Under cl 4.6(3) of KLEP, a consent authority must not grant consent unless the consent authority has considered a written request from the Applicant seeking to justify the contravention of the development standard by demonstrating:

1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

2. that there are sufficient environmental planning grounds to justify contravening the standard.

41. In addition, under cl 4.6(4)(a)(ii) of KLEP, the consent authority must also be satisfied that:

1. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and with the objectives for the development within the zone in which the development is proposed to be carried out.

42. Preston CJ concluded, at [25] of Initial Action, his discussion in relation to the requirements of cl 4.6(3) of the so-called standard instrument, as follows:

“The applicant bears the onus to demonstrate that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the applicant’s written request in order to enable the consent authority, or the Court on appeal, to form the requisite opinion of satisfaction: see Wehbe v Pittwater Council at [38].”

The Applicant’s proposed development is consistent with the objectives of the R2 zone

43. During the hearing, the Applicant’s cl 4.6 written request, prepared by ‘aSquare Planning’ was the subject of testimony from the Parties‘ expert planners:

1. Ms Jennie Askin, for the Applicant; and

2. Ms Heather Warton, for the Respondent.

44. I note that the Applicant’s written request makes several references to cl “41C” of KLEP in relation to its consideration of the requirements of cl.4.6(3) of KLEP.

45. At the hearing, the Parties and their experts agreed that this reference was in fact a reference to cl 4.1C of KLEP. Consequently, I have read cl “41C” within the Applicant’s written request as cl 4.1C of KLEP as necessary.

46. Ms Askin and Ms Warton had prepared a joint expert report, which was tendered as evidence at the hearing.

47. In their joint report the experts had agreed that, as concerns the consistency of the proposed development with the objectives of the R2 zone (see above at [17(2)]) on which the Subject Site is located, and relevantly in relation to the provisions of cl 4.6(4)(a)(ii):

1. the Applicant’s proposed development satisfies the first of the objectives for the R2 zone, which I infer to mean that it is consistent with that objective, insofar as:

1. the retention of the existing house on proposed Lot 2 would provide for the housing needs of the community;

2. the erection of a dwelling house on proposed Lot 1 is not proposed within the Applicant’s development application and so this first objective of the minimum subdivision lot size development standard is not directly relevant to proposed Lot 1;

2. the second objective of the R2 zone is not relevant to the proposed development, except insofar as a future non-residential development, to meet the day to day needs of residents, would be permissible in the zone should consent be granted the Applicant’s development application.

48. Consistent with this opinion of the experts, I am also satisfied that the Applicant’s proposed development is consistent with the objectives of the R2 zone within which the Subject Site is found, fulfilling the provisions of cl 4.6(4)(a)(ii) of KLEP.

49. As I have formed an opinion of satisfaction in relation to the provisions of cl 4.6(4))a)(ii), it remains for me to examine whether an opinion of satisfaction can be formed in relation to the provisions of cl 4.6(4))a)(i) of KLEP. This requires that (see above at [39]) the Applicant’s cl 4.6 written request satisfies the matters required to be demonstrated by cl 4.6(3).

50. In addressing the requirements of cl.4.6(3) of KLEP (see above at [40]), I will first address whether compliance with the development standard is unreasonable or unnecessary. I will then consider whether there are sufficient environmental planning grounds to justify contravening the standard.

Is compliance with the minimum subdivision lot size development standard unreasonable or unnecessary?

51. In assessing whether compliance with the standard is unreasonable or unnecessary, it is appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 in which His Honour identified the five most frequently used pathways applied to establish whether compliance is unreasonable or unnecessary.

52. These are to establish one, or more, of the following:

1. that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

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

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

4. that the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;

5. that “the zoning of particular land” was “unreasonable or inappropriate” so that “a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land” and that “compliance with the standard in that case would also be unreasonable or unnecessary.

53. The Applicant’s cl 4.6 written request asserted that compliance with the minimum subdivision lot size development standard is unreasonable or unnecessary because the proposal achieved the objectives of the standard.

54. The objectives of the development standard in cl 4.1 of KLEP were previously identified above at [17(4)], and are to:

promote the efficient use of land;

to ensure that subdivision does not prevent the orderly development of land;

require adequate street frontages and dimensions for standard and battle-axe lots; and

ensure that the intensity of development is appropriate to the land’s environmental capability.

55. The Applicant’s cl 4.6 written request sought to demonstrate that compliance with the minimum subdivision lot size development standard is unreasonable or unnecessary because the Applicant’s proposed development achieved the objectives of the standard as follows:

1. In relation to first objective, concerning the orderly use of land, the Applicant’s cl 4.6 request said that this objective was achieved because:

1. the proposal seeks to provide a dwelling on each proposed allotment of land, being 453m2 for proposed Lot 1and 460m2 for proposed Lot 2;

2. concept drawings provided indicate that:

1. a two storey dwelling in accordance with the height, FSR, setback, parking and landscaping controls can be provided on the proposed Lot 1;

2. the existing tree on the Subject Site would be protected;

3. adequate stormwater management would be achieved on both proposed Lots; and

4. adequate open space and parking would be provided on proposed Lot 2;

2. In relation to the second objective, concerning ensuring that the proposed development does not prevent the orderly development of land the Applicant’s cl 4.6 request said that this objective was achieved because:

1. the proposed subdivision of the existing site is considered to represent the orderly development of land, given its compliance with provision of clause 4.1C of KLEP;

2. Clause 4.1C allows for the subdivision of the site for the purpose of two allotments, where a site has two road frontages and a dual occupancy has been lawfully constructed on the site. The outcome of this clause matches the outcome proposed under cl 4.1 for this application, with the difference being the timing of construction;

3. the objective of cl 4.1C is to ensure that dwellings on lots created by subdivision of a lot, on which a dual occupancy has been erected, do not exceed the permissible FSR of the site. The minimum lot size under this standard is 300m2. As the proposed development would provide two lots exceeding this control, the Applicant’s written request stated that the resultant lots would allow for a reasonable development in the form of a dwelling on each lot, each complying with the applicable FSR control.

3. In relation to the third objective, requiring adequate street frontages and dimensions for standard and battle-axe lots, the Applicant’s cl 4.6 request said that this objective was achieved because:

1. the outcome of the Applicant’s proposed development would match the outcome of a development under cl 4.1C of KLEP, confirming that the street frontage, and the area of each lot, is sufficient to accommodate a dwelling within each lot.

4. In relation to the final objective, concerning ensuring that the intensity of development is appropriate to the land’s environmental capability, the Applicant’s cl 4.6 request said that this objective was achieved because:

1. the concept drawings of a possible dwelling on proposed Lot 2, prepared by Harrison Friedmann, provide for a dwelling which is compliant with council’s controls in terms of height, FSR, setbacks, deep soil landscaping and parking;

2. for the reasons provided above at [(a)], the site is capable of supporting future development for the purposes of a dwelling house which would occur as a result of the proposed subdivision;

3. the existing site could accommodate a dwelling on proposed Lot 1 whilst retaining the dwelling on proposed Lot 2, without compromising the amenity of either dwelling; and

4. development on proposed Lot 1 could be undertaken in such a manner as to allow for the retention of the existing significant tree and to allow adequate stormwater management.

56. During the hearing the planning experts provided testimony in relation to the Applicant’s cl 4.6 written request, As part of this, Ms Askin confirmed that she was the author of the Applicant’s cl 4.6 written request, and she said that, in arriving at the conclusions expressed above at [55(1)] and [55(4)] concerning the first and fourth objectives of cl 4.1 of KLEP, she had:

1. applied her experience in undertaking her assessment on the likely compliance and potential impacts of the Applicant’s proposed concept dwelling on proposed Lot 1;

2. not given consideration to the deep soil and other landscape controls applicable to the Subject Site in relation to the Applicant’s proposed subdivision;

3. not had the benefit of elevations to confirm the height of the Applicant’s concept dwelling in relation to the height of buildings control in cl 4.3 of KLEP;

4. not had the benefit of shadow diagrams in relation to the Applicant’s proposed concept dwelling, and the potential impact of overshadowing on the property to the south of proposed Lot 1; and

5. not considered the potential impact, including potential overshadowing impacts, of the two storey dwelling on the adjacent lot to the north of the Subject Site at 68 Kyle Parade;

6. as a consequence of her testimony above at [5], not considered:

1. the potential amenity impacts of house at 68 Kyle Parade on the Applicant’s proposed concept dwelling for proposed Lot 1; and therefore

2. the capacity of a development on proposed Lot 1 to be compliant with relevant amenity related controls applicable to the Subject Site.

57. Having considered the testimony of the expert planners, I have concluded as follows in relation to concerning the proposed development’s compliance with the objectives of the minimum subdivision lot development standard in cl 4.1 of KLEP:

1. as concerns the first objective of the development standard concerning the efficient use of land:

1. the statement in the cl 4.6 written request that the proposed development would provide a dwelling on each proposed lot of the sizes identified by the Applicant, is a statement of fact, and cannot demonstrate achievement of this objective, in my assessment, any more than would a non-compliant proposal to subdivide the Subject Site into four lots.

2. the assertion in the cl 4.6 written request that the concept drawings provided indicates that a two storey dwelling can be provided on proposed Lot 1 in accordance with various development standards and controls applicable to the Subject Site. In my assessment, while Ms Askin confirmed that the assertion was based on her experience, it was not based on an objective and fact based evaluation of the concept design against those standards and controls. I base this finding on Ms Askin’s testimony that her assertion of compliance had not included consideration of:

1. any drawings of elevations of the concept dwelling design that would have supported the statements in the cl 4.6 written request concerning compliance with relevant height controls;

1. the relevant landscape controls, including deep soil controls that would have supported a statement of compliance with landscaping controls. I note that the relevant controls were not identified in the written request;

2. shadow diagrams that would have supported a statement of compliance in relation to potential impacts on adjoining lots, including in relation to overshadowing impacts. In my assessment, this is also a relevant consideration in relation to an objective relating to the efficient use of land;

3. the potential impacts of the adjoining two storey development on the adjoining lot to the north in relation to amenity outcomes that might be achieved through development of proposed Lot 1. In my assessment, this would also be a relevant consideration in relation to an objective relating to the efficient use of land.

3. the statement in the cl 4.6 request that the “existing tree” (assumed by both Parties and experts in the hearing to be tree T6 on the Subject Site) would be protected, had not been objectively evaluated in relation to the specific tree protection requirements of tree T6. I base this finding on the following points:

1. during the hearing, the Parties expert arborists (Mr Tom Hare for the Applicant and Mr Craig Kenworthy for the Respondent) had agreed that the concept design for the proposed dwelling for Lot 1 intruded into the tree protection zone of tree T6 by some 24%, and that this was a major encroachment into the TPZ of tree T6 under the criteria within Australian Standard AS4970-2009 Protection of trees on development sites (AS4970);

2. while the expert arborists confirmed in their testimony that an elevated pier and beam structure, if adopted by the Applicant, in combination with root mapping for tree T6, could mitigate potential impacts on tree T6, such a design had not been provided within the Applicant’s concept design for a dwelling on proposed Lot 1, and as a consequence could not have been considered in the preparation of the Applicant’s written cl 4.6 request and the conclusions stated therein;

3. as a consequence of the points above at (i) and (ii) , the Applicant’s statement in the cl 4.6 request that the “existing tree” on the Subject Site would be protected was an assertion not based on any objective evaluation of the specific requirements for protection of the tree (that is tree T6), as identified in AS4970. Consequently, it so does not demonstrate achievement of the objective;

4. the statement that adequate stormwater management would be achieved on both proposed Lots was agreed by both Parties in submissions. However, while I accept that adequate stormwater management could be achieved on both proposed Lots, given the conclusions above at [(a)], [(b)] and [(c)], this statement alone cannot demonstrate achievement of the objective; and

5. the Applicant’s assertion that adequate open space and parking would be provided on proposed Lot 2 does not demonstrate achievement of the objective because the Applicant’s assessment of the adequacy of open space provided on proposed Lot 2 was not objective as it did not give consideration to the potential overshadowing impacts on open space on proposed Lot 2 of the two storey dwelling on the adjacent lot to its north at 68 Kyle Parade.

2. as concerns the second objective, in relation to ensuring that the proposed development does not prevent the orderly development of land, the Applicant relies on the compliance of the proposed development with the provisions of cl 4.1C of KLEP. This clause concerns the subdivision of land on which a dual occupancy has been erected, and relevantly:

1. the Applicant’s proposed development is not made in relation to the subdivision of land on which a dual occupancy has been erected under cl 4.1C of KELP;

2. the compliance or otherwise of the Applicant’s proposed development with the provision of that clause is, in my assessment, of no relevance to the satisfaction of the objectives of cl 4.1 of KLEP.

3. as a consequence of the matters identified above at (a) and (b), the Applicant’s written request under cl 4.6 has not demonstrated achievement of this second objective of the minimum subdivision lot size development standard in cl 4.1 of KLEP.

3. as concerns the third objective in relation to adequate street frontages and dimensions for standard and battle-axe lots, the assertion that the outcomes of the proposed development would match the outcomes of a development under cl 4.1C of KLEP, in relation to street frontages and the areas of each lot:

1. is not, in my assessment, relevant to the fulfilment of an objective under a different clause of KLEP, that being cl 4.1, and therefore does not demonstrate fulfilment of this objective;

4. as concerns the final and fourth objective, concerning ensuring that the intensity of development is appropriate to the land’s environmental capability:

1. I repeat my assessment of the various propositions put forward by the Applicant in relation to the first of the objectives under cl 4.1 of KLEP. Because the propositions put forward by the Applicant in relation to this final fourth objective are of a similar nature to those put forward in relation to the first objective, I rely on these reasons to conclude that that the Applicant has not demonstrated achievement of this final fourth objective of cl 4.1 of KLEP.

5. the Applicant’s written request prepared under the provisions of cl 4.6 of KLEP has not, in my assessment, demonstrated that the proposed development has achieved the objectives of the minimum subdivision lot size development standard, and so has not demonstrated that compliance with the standard is unreasonable or unnecessary in the circumstances of the case.

58. The Applicant’s written also identified the following further points in support of its submission that compliance with the development standard in cl 4.1 of KLEP was unreasonable or unnecessary:

1. the written request said that compliance with the development standard is unreasonable and unnecessary as the proposal will allow for the subdivision and future development of the proposed lots in accordance with the intent of cl 4.1C of KLEP. In relation to this proposition, and in relation to the Applicant’s reliance on cl 4.1C of KLEP concerning the second and third objectives of cl 4.1 of KLEP, I note that it is open to the Applicant to lodge a development application relying on the provisions of cl 4.1C of KLEP for the potential subdivision of the Subject Site with a dual occupancy. However, the application before the Court in this appeal is not such an application.

2. the written request said that concept drawings provided by the Applicants illustrated that each lot can accommodate a dwelling of a reasonable amenity in keeping with the development standards and objectives, and was reflective of the current constraints of the Subject Site in terms of tree management and stormwater management. In relation to this proposition I repeat, and rely upon, my assessment of the Applicant’s submissions in relation to the objectives of the minimum subdivision lot size development standard (see above at [57]) and confirm that, in my assessment, the proposition has not been demonstrated.

3. the written request said that provision of the lots as proposed would allow for dwellings on each lot that would not result in unreasonable environmental amenity impacts (in terms of overshadowing, loss of views, loss of privacy or loss of visual amenity) on adjoining properties, and on each other. In relation to this proposition I repeat, and rely upon, my assessment of the Applicant’s submissions in relation to the objectives of the minimum subdivision lot size development standard (see above at [57]), and confirm that, in my assessment, the proposition has also not been demonstrated.

59. As a consequence of my findings above at [57] and [58] , I conclude that the Applicant’s cl 4.6 written request:

1. does not demonstrate that the Applicant’s proposed development achieves of the objectives of the minimum subdivision lot size development standard in cl 4.1 of KLEP; and

2. has not demonstrated that compliance with the minimum subdivision lot size development standard is unreasonable or unnecessary in the circumstances of the Applicant’s proposed development, as required under cl 4.6(3)(a) of KLEP.

Are there are sufficient environmental planning grounds to justify the proposed development contravening the minimum subdivision lot size development standard?

60. The requirement for an Applicant’s cl 4.6 written request to demonstrate that there sufficient environmental planning grounds to justify contravening the standard was also addressed by Preston CJ in Initial Action, in which he said (at [24]) that:

“The adjectival phrase “environmental planning” is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EP&A Act, including the objects in s 1.3 of the EP&A Act.”

61. The objects of the EP&A Act were provided above at [13].

62. Within Initial Action (at [24]), the Chief Judge also identified that there are two respects in which an Applicants’ cl 4.6 written request needs to be ‘sufficient’ in relation to the environmental planning grounds so as to justify the contravention of a development standard. These are:

“First, the environmental planning grounds advanced in the written request must be sufficient “to justify contravening the development standard”. The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15].

Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31].”

63. The Applicant’s cl 4.6 written request posits five reasons as the bases for demonstrating the sufficiency of environmental planning grounds to justify the contravention of the development standard. Those propositions, and my assessment of them, are as follows:

1. the proposed development achieves compliance with the relevant underlying objectives of the standard and the objectives of the zone,

1. which I assess as not being a sufficient environmental planning grounds to justify the contravention of the development standard for the following reasons:

1. compliance with the relevant underlying objectives of the standard, and the objectives of the zone, are matters called up by other parts of cl 4.6 of KLEP, and so are not matters that are pertinent to the specific provisions of cl 4.6(3)(b). They are relevant to the provisions of cl 4.6, specifically cl 4.6(3)(a), and, in part, cl 4.6(4)(a)(i), as well as the public interest under cl 4.6(4)(ii);

2. the demonstration of sufficiency of environmental planning grounds required to justify the contravention of the development standard under cl 4.6(3)(b) should be based on considerations other than those addressed within other provisions of cl 4.6 of KLEP. As Preston CJ noted in Initial Action, they would refer to grounds that relate to the subject matter, scope and purpose of the EP&A Act, including the objects in s 1.3 of the EP&A Act;

3. notwithstanding my findings above at (a) and (b), I have already concluded (see above at ([59]), that the proposed development does not achieve the objectives of the minimum subdivision lot size development standard, contrary to the assertion within the Applicant’s cl 4.6 written request.

2. the proposal will allow for the future subdivision and future development of the proposed lots in accordance with the intent of clause 4.1C of KLEP, and will achieve the intent of this development standard to allow for dwellings in accordance with Council’s FSR control,

1. which I assess as not being a sufficient environmental planning grounds to justify the contravention of the development standard for the following reasons:

1. as discussed above at [32], the Applicant’s proposed development is made pursuant to cl 4.1 of KLEP, and not cl 4.1C of KLEP.

2. as a consequence of (i) above, there is nothing which requires the Applicant to secure a consent under cl 4.1 as a precondition to pursuing a dual occupancy development under cll 4.1B and 4.1C of KLEP.

3. the proposition within the Applicant’s cl 4.6 written request that seeks to link its proposed development to the provisions of cl 4.1C is ill-founded, unnecessary and flawed, in my assessment.

4. it remains open to the Applicant to pursue a development application for a dual occupancy development with subdivision under the provisions of cll 4.1B and 4.1C of KLEP, but that is not a development application that comes before the Court in this appeal.

3. the concept drawings provided illustrate that each lot can accommodate a dwelling of a reasonable amenity and in keeping with the development standards and objectives and reflective of the current constraints of the site in relation to tree management and stormwater management,

1. which I assess as not being a sufficient environmental planning grounds to justify the contravention of the development standard for the following reasons:

1. I have already concluded (see above at ([59]), that the proposed development does not achieve the objectives of the minimum subdivision lot size development standard, contrary to the assertion within the Applicant’s cl 4.6 written request;

2. I am not satisfied that the Applicant has demonstrated that each proposed lot can accommodate a dwelling of a reasonable amenity, as the Applicant has not undertaken the requisite assessments of amenity, including assessment of the potential impacts of adjacent dwellings on the Subject Site, nor of the landscaping requirements of KDCP that would be required to so demonstrate;

4. provision of the lots proposed will allow for dwellings on each lot that do not result in unreasonable environmental amenity impacts in terms of overshadowing, loss of views, loss of privacy or loss of visual amenity for adjoining properties and each other,

1. which I assess as not being a sufficient environmental planning grounds to justify the contravention of the development standard for the reasons already provided above at [57] and [58];

5. the proposal will provide allow (sic) for the future development of a lot and this represents the orderly and economic use and development of land which is identified as an object of the Act (Section 1.3 of the EP&A Act),

1. which I assess as not being a sufficient environmental planning grounds to justify the contravention of the development standard because the Applicant has not demonstrated that its proposed development would represent the orderly use and development of land because:

1. the proposed development is not consistent with the objectives of the minimum subdivision lot size development standard;

2. the proposed development has not demonstrated that it would not result in unreasonable environmental amenity impacts, including in relation to overshadowing and landscaping;

3. the proposed development has not demonstrated that it would not result in unacceptable potential environmental impacts, including in relation to potential impacts on trees on the Subject Site;

64. The Applicant’s cl 4.6 written request also stated that the two resulting lots, as proposed, would allow development which would not have unreasonable impacts on the amenity of adjoining properties in the locality. It also said that the lack of impacts on adjoining properties, in terms of solar access, privacy, view loss and visual bulk, would represent sufficient environmental planning grounds to justify contravening the development standard.

65. However for reasons provided above at [57], I am not satisfied that the Applicant has demonstrated that its proposed development would not have unreasonable impacts on the amenity of adjoining properties in the locality.

66. Consequently, the Applicant’s statement in its cl 4.6 written request that this lack of impacts would represent sufficient environmental planning grounds to justify contravening the development standard is, in my assessment, ill founded.

67. Further, and consistent with my previous judgements in the matters of Peric v Randwick City Council [2018] NSWLEC 1509 and SNL Building Construction Pty Ltd v Lake Macquarie City Council [2019] NSWLEC 1147, I do not accept that the lack of impacts of a proposed development, on its own, can provide sufficient environment planning grounds to contravene a development standard.

Further considerations

68. The Applicant’s cl 4.6 written request had sought to rely, in part, on the decision of Preston CJ in Initial Action, at [94(c)], for its conclusion that the lack of impacts on adjoining properties (in this case in relation to solar access, privacy, view loss and visual bulk) would represent sufficient environmental planning grounds to justify contravening the development standard.

69. In this regard, the Applicant quoted Preston CJ in Initial Action at [94(c)], as follows:

“… in holding incorrectly in [136] that the lack of adverse amenity impacts on adjoining properties is not a sufficient ground justifying the development contravening the development standard,…”

70. However, as submitted by the Respondent at the hearing, this quote was taken from a broader consideration by His Honour of the consistency of a development with the objectives of a development standard, and not in relation to the sufficiency of environmental planning grounds as the Applicant had submitted.

71. The quote above at [69], was only a part of what His Honour had considered to be one of five ways that the Commissioner in the decision in Initial Action Pty Ltd v Woollahra Council [2017] NSWLEC 1734 had misdirected herself. In that context, a fuller representation of the Chief Judge’s quote from Initial Action is more helpful.

72. At [94]: the Chief Judge said:

“… I find that the Commissioner did misdirect herself concerning the consistency of the development with the objectives of the height development standard in five ways:

….

(c) in holding incorrectly in [136] that the lack of adverse amenity impacts on adjoining properties is not a sufficient ground justifying the development contravening the development standard, when one way of demonstrating consistency with the objectives of a development standard is to show a lack of adverse amenity impacts (see Randwick City Council v Micaul Holdings Pty Ltd at [34])”

73. That fuller quote confirms that the Chief Judge, at [94] of Initial Action, was, in fact addressing a point in relation to the consistency of a development with the objectives of a development standard, and he was not discussing a point concerning the sufficiency of the Applicant’s environmental planning grounds in isolation.

Conclusions

74. Based on the above considerations at [60] to [67], I have concluded that the Applicant’s cl 4.6 written request, seeking to vary the minimum subdivision lot size development standard in cl 4.1 of KLEP, has not demonstrated that there are sufficient environmental planning grounds to justify the variation proposed as required under cl 4.6(3)(b) of KLEP.

75. The Applicant’s cl 4.6 written request has not, in my assessment, demonstrated that:

1. compliance with the minimum subdivision lot size development standard under cl 4.1 of KLEP is unreasonable or unnecessary;

2. there are sufficient environmental planning grounds to justify contravening the minimum subdivision lot size development standard as required under cl 4.6(3)(b) of KLEP.

76. Based on my findings above at [75], I further conclude that the Applicant’s written request to vary the minimum subdivision lot size development standard in cl 4.1 of KLEP is not well founded.

76. Therefore, I am not able to be satisfied that the matters required to be demonstrated by cl 4.6(3) of KLEP have been adequately addressed, and nor, as a consequence, can I be satisfied that the proposed development will be in the public interest.

77. For completeness, I note again that the Parties’ expert planners agreed within their joint report that the Applicant’s proposed development was:

1. consistent with the first of the objectives of the R2 zone in which the Subject Site is located; and

2. was not antithetical to the second (see above at [44]).

79. Nevertheless, as satisfaction in relation to the matters provided in cl 4.6(3) is a precondition in order to enliven the Court’s power to grant consent, and as I have been unable to form an opinion of satisfaction in relation to these matters, the Court’s powers to grant consent are not enlivened, and I do not have jurisdiction to determine this appeal.

80. As a consequence of my finding at [79], it is unnecessary for me to consider the remaining merits contentions in this matter, and the appeal should be dismissed.

Orders

81. The orders of the Court are:

1. The appeal is dismissed;

2. The exhibits are returned, with the exception of Exhibits A, B, G and 1.

…………………….

M Chilcott

Commissioner of the Court

**********

Decision last updated: 09 July 2019