Matthews v Strathfield Municipal Council

[2019] NSWLEC 1141

Land and Environment Court

New South Wales

Medium Neutral Citation:	Matthews v Strathfield Municipal Council [2019] NSWLEC 1141
Hearing dates:	19 March 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are: (1)   The applicant is granted leave to rely on amended plans; (2) The objection pursuant to cl 4.6 of the Strathfield Local Environmental Plan 2012 in respect of the minimum lot size standard is not sustained; (3)   The appeal is dismissed; (4)   Development application DA 2017/132 for Torrens title subdivision of 26 Dean Street, South Strathfield is refused; (5)   The exhibits are returned with the exception of Exhibits A, B, H and 4.
Catchwords:	DEVELOPMENT APPLICATION: Torrens Title subdivision of existing land of into two allotments –variation to minimum lot size standard – whether cl 4.6 request should be upheld – is the request reasonable and well founded – appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Strathfield Local Environmental Plan 2012
Cases Cited:	Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Strathfield Development Control Plan 2005 Strathfield Direct Development Contributions Plan 2010-2030
Category:	Principal judgment
Parties:	Eric Matthews (First Applicant) Sharmistha Singh (Second Applicant) Strathfield Municipal Council (Respondent)
Representation:	Counsel: Dr J Smith (Applicants)   Solicitors: Shore Stack Lawyers (Applicants) K Law, Matthews Folbigg Pty Ltd (Respondent)
File Number(s):	2018/96830
Publication restriction:	No

Judgment

1. COMMISSIONER: The applicants lodged Development Application No. 2017/132 on 7 November 2017. They seek consent for the Torrens Title subdivision of an existing residential lot into two separate lots. The Council refused consent on 2 November 2018 and the applicants are appealing that determination in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

2. The development is proposed at 26 Dean Street, Strathfield South. The existing lot has an area of 579.5m². The application seeks approval for the subdivision of the existing lot into two separate Torrens title allotments as follows:

1. Lot 1 (frontage to Dean Street): 235.475m²;

2. Lot 2 (frontage to Everitt Place): 344.025m².

3. The appeal was subject to mandatory conciliation under s 34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4) of the LEC Act and the proceedings were listed for hearing.

4. The Council maintains that the proposed development should be refused for the following reasons:

1. that the requested variation to the minimum lot size is unreasonable;

2. the proposed lot size variation is inconsistent with the objectives of the minimum lot size standard;

3. the variation request does not adequately demonstrate that there are sufficient environmental planning grounds to vary the minimum lot size standard;

The Site

5. The existing lot is legally described as Lot 2 in Deposited Plan 253742 and is located on the southern side of Dean Street in South Strathfield.

6. The existing lot is an irregularly shaped allotment with a frontage of 12.19m to Dean Street. Currently vehicular access is provided from Everitt Place to the existing dwelling. There is an existing driveway crossing in the kerb of Dean Street which was utilised by the previous residence which faced Dean Street (since demolished). The existing Dean Street crossing is intended to be partially demolished and reconstructed to accommodate a new driveway crossing for proposed Lot 1.

7. There is an existing two storey dwelling with an in ground pool and cabana located on the southern end of the existing lot. The application includes the demolition of the swimming pool and the cabana associated with the existing residence fronting Everitt Place. The resulting area is to be reinstated as deep soil landscaping and used as private open space for proposed Lot 2 (Exhibit B).

The Locality

8. Development surrounding the site comprises single and two storey detached, semi-detached and dual occupancy dwellings. The surrounding built forms are predominately constructed of brick, with some dwellings finished with render. Pitched tiled roofs predominate as the characteristic roof form.

9. There is an existing two storey dwelling located on the subject site with frontage to Everitt Place. The existing lot has an unbuilt upon area fronting Dean Street which is the proposed location of Lot 1.

10. The location of Proposed Lot 1 is identified in the following aerial photograph of the locality:

(Source: Planning Controls:

11. The existing lot is zoned R2- Low Density Residential under the Strathfield Local Environmental Plan 2012 (LEP 2012). The proposed Torrens Title subdivision is permissible with consent in the zone. The objectives of the R2 – Low Density Residential zone are:

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

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

• To ensure that development of housing does not adversely impact the heritage significance of adjacent heritage items and conservation areas.

12. Pursuant to cl 4.1 of LEP 2012 the applicable minimum subdivision lot size is 560m².

13. The objectives of cl 4.1: Minimum Subdivision Lot Size are as follows:

(a) to promote consistent subdivision and development patterns that reflect and reinforce the predominant subdivision pattern of the area;

(b) to ensure a variety of lot sizes are maintained of sufficient size and shape to accommodate a variety of development types;

(c) to preserve large industrial lots in order to provide a range of large-scale sites suitable for industrial activities that require integrated and large floorplates.

14. The application seeks a variation to the minimum lot size standard as proposed Lot 1 and Lot 2 are below the minimum size of 560m². LEP 2012, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances.

15. However, consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely:

(a) 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.

16. The onus is on the applicant to meet the tests of cl 4.6 in seeking flexibility to the minimum lot size standard: Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 at [25] (“Initial Action”). The applicant’s written request seeking to justify the contravention of the development standard must adequately address both:

that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a));

that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

17. The Court, on appeal, must form a positive opinion of satisfaction that the applicant’s written request has adequately addressed the matters in cl 4.6(3): Initial Action at [25]. Forming the state of satisfaction is a precondition to consent.

18. During the course of the hearing the applicant sought, and was granted leave to amend the written request seeking a variation to the lot size standard to incorporate the additional statements contained in the joint experts report and the Applicant’s Statement of Facts and Contentions in reply. The hearing was adjourned to allow the planning experts to conference on this amended request. The supplementary joint report was tendered as Exhibit 7.

19. Strathfield Development Control Plan 2005 (DCP 2005) applies to the development application. At Part 3: Residential Subdivision DCP 2005 provides the relevant development controls for subdivision. For the R2 Low Density Residential Zone the minimum lot size is 560m².

20. At 3.1 (3) DCP 2005 states:

“Proposed subdivision or amalgamation must have characteristics similar to the prevailing subdivision pattern of lots fronting the same street, in terms of lot width, area, dimensions, shape and orientation. In the case of irregular shaped allotments, Council will require that a suitable building envelope be available for development.

Note: Council generally considers the ‘prevailing subdivision pattern’ to be the typical characteristics of up to ten allotments on either side of the subject site and the corresponding number of allotments directly opposite the subject site. Properties located in the surrounding streets do not usually form part of the streetscape character and are therefore not taken into consideration when determining the prevailing subdivision pattern.”

21. Whilst the proposed application is for subdivision, at cl 2.2.2(4) of DCP 2005 the policy requires: “Development applications for subdivision should demonstrate through conceptual building plans providing an indicative building envelope that the newly created allotments would be able to accommodate permissible land uses that would comply with all parts of the DCP.” (Exhibit 1)

22. The applicant has submitted conceptual plans for a future residential dwelling. The approval of this development does not form part of the application.

23. The following relevant provisions of DCP 2005 are also relevant:

• “Part A – Dwelling Houses and Ancillary Structures

• 4.2.3.1: Setbacks

(1) Primary street frontage: 9m

(2) Despite Subclause 1 above, a primary street setback of less that 9m may be considered where:

a) The predominant front setback in the street is less than 9m;

b) The proposed setback is not less than the setback of the existing dwelling;

c) The proposed setback would not conflict with the character of the existing streetscape.

• 8.2.2: Garages, Carports and Car Spaces

(1) Two (2) car parking spaces are to be provided and maintained behind the front building line of all new dwellings (ie. garage, carport or car space). For lots less than 15m wide consideration may be given to one (1) space. Where alterations and additions are proposed and two (2) spaces are available these spaces must be maintained.”

24. If consent is granted by the Court the application would be subject to the provisions of Strathfield Direct Development Contributions Plan 2010-2030.

Public Submissions:

25. In accordance with the provisions of DCP 2005 the development application was notified to adjoining and nearby properties. Council also received one submission in objection to the application. The objector raises concern that the proposal for undersized lots will have ramifications for site coverage of a future development on proposed Lot 1, boundary setbacks and flooding.

Experts:

26. For the applicant the Court heard expert planning evidence from Mr Kerry Nash. The Council relied on planning evidence from Mr Greg Hansell. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention.

27. As a result of the conferencing process a joint planning expert report was prepared which was tendered as Exhibit 2. During the proceedings a supplementary expert report was prepared and tendered as Exhibit 7.

Assessment of the requested variation to the Lot Size Standard:

28. The Applicant seeks to vary the minimum lot size development standard at cl 4.1 of LEP 2012.

29. The submitted variation request details the extent of variation as follows:

“Clause 4.1(3) nominates the size of any lot resulting from subdivision of land is not be less than 560m² for the subject site. It is requested that an exception to this development standard be granted pursuant to clause 4.6 so as to permit 2 subdivided allotments with a minimum site area of 235m² for the subject site.”

(Exhibit H)

30. The onus is on the Applicant to meet the tests of cl 4.6 of LEP 2012 in seeking flexibility to the minimum lot size development standard: Initial Action at [25].

31. The Applicant’s written request seeking to justify the contravention of the development standard must adequately address both:

• that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a));

• that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

32. The Court, on appeal, must form a positive opinion of satisfaction that the Applicant’s written request has adequately addressed the matters in cl 4.6(3): Initial Action at [25].

Whether compliance with the development standard is unreasonable or unnecessary

33. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] (‘Wehbe”).

34. Namely, that:

1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1);

2. the underlying objective or purpose of the standard is not relevant to the development, so that compliance is unnecessary (Wehbe test 2);

3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3);

4. that the development has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or

5. that the zoning of the land is unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (Wehbe test 5).

35. In Initial Action, Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22]).

36. In this appeal, the Applicant has utilised Wehbe tests 1, 3 and 4 in support of their conclusion that compliance with the development standard is unreasonable and unnecessary. The argument outlined in the written request is as follows:

“(i) Objective (a) of Clause 4. 1 of the Strathfield LEP 2012 will be achieved. The proposed allotment of land facing Dean Street will be consistent with the many existing divisions of surrounding land and will reinforce the Dean Street streetscape, wherein dwellings maintain a reasonably consistent street setback;

(ii) Objective (b) of Clause 4. 1 of the Strathfield LEP 2012 will be achieved. The proposed allotment will be consistent with the many varying allotment sizes in the locality of Dean Street, a number of which are significantly less than 560m2;

(iii) Strict compliance with the prescriptive minimum size of subdivision requirements of subclause (3) results in the subject land having its rear yard to Dean Street and the dwelling set back a discordant distance from Dean Street, upsetting the rhythm of the streetscape;

(iv) Council has granted consent to the creation of allotments of land in the locality of Dean Street which are around 300m². This demonstrates that Council has departed from strictly invoking its own prescriptive standards;

(v) Strict compliance is unreasonable in this circumstance as there is already an approved dwelling house facing Everitt Place, the empty yard that faces Dean Street upsets the existing and established rhythm of the Dean Street streetscape and an almost entirely compliant dwelling /louse in accordance with the relevant provisions of the Strathfield Consolidated DCP 2005 can be sited on Proposed Lot 1;

(vi) Strict compliance with the nominated controls leaves the subject site which currently has frontage to Dean Street appearing from a streetscape perspective to be a vacant allotment crying out to be infilled.

(vii) Currently, the site maintains 2 street frontages and uniquely is not a typical corner allotment;

(viii) The proposed allotment facing Dean Street is of identical width (12. 19m) as the surrounding predominant allotment width of lots in Dean Street on which are developed existing dwellings;

(ix) The non-compliance will improve the impact of the developed lot upon the public domain as viewed from either Dean Street or Everitt Place;

(x) A suitably designed dwelling house with compliant side and rear setbacks can be constructed on the site which will have acceptable amenity impacts upon the Immediately adjoining properties;

(xi) The future development of the vacant allotment of land together with the retention of the existing dwelling will be consistent with the LEP zone objectives by replacing what currently appears as a redundant allotment of land with a consistent urban form outcome to what presently prevails in Dean Street and which reflects the desired future character of the surrounding low density residential neighbourhood whilst also promoting the efficient and spatially appropriate use of land; and

(xii) The future development of Proposed Lot 1 together with the retention of the existing dwelling on Proposed Lot 2 will remain consistent with the existing surrounding subdivision pattern wherein a constant street frontage will be reinforced.”

(Exhibit H)

37. The written request provides further detail, seeking to demonstrate that the development achieves the objectives of the lot size standard notwithstanding the variation to the standard. The following arguments predominately focus on how the proposed development achieves the first objective of the standard, namely: ‘(a) to promote consistent subdivision and development patterns that reflect and reinforce the predominant subdivision pattern of the area’.

“… the block bounded by Dean, Maria and Clement Streets and Coronation Parade, shows the subdivision pattern is clearly distinguishable and different from that of the block on the northern side of Dean Street bounded by Edward Street. Bennett Avenue and Hillcrest Avenue. In the latter case the subdivision pattern is regular in terms of allotment size and frontage dimensions to Dean Street and Bennett Avenue with smaller but generally consistent lot size and frontage dimension of lots facing Edward Street and Hillcrest Avenue.

However, on the block in which the subject site is located, the subdivision pattern can be characterised by its diversity in terms of;

Lot size:

- significant variation in lot size (area), as evidenced by Lots 32A-32D Dean Street, 34-40 Dean Street, 4-8 Maria Street and 111-117 Coronation Parade compared to 10, 12 and 28 Dean Street.

Lot Depth:

- lots at 10, 12, 14, 16 and 28 Dean Street are uncharacteristically deep. Whilst Lots 32A-32D are short in depth generally consistent with the proposed subdivision of the subject site,

Lot Frontage:

- significant variation in lot frontage dimensions with 24 Dean Street having the widest frontage and 4, 4A, 6 and 8 Maria Street the narrowest frontage dimension.

Lot shape and amalgamation:

- clear evidence of amalgamation and resubdivision is evident in the Everitt Place subdivision being an amalgamation of 20-26 Dean Street; 30-32 Dean Street; 4-8 Dean Street with 109 Coronation Parade; and 4-4A Maria Street.

Thus, in terms of the objective (a) of the standard, the proposed subdivision of 26 Dean Street will not be inconsistent with the existing subdivision pattern of the "area" and will continue to maintain its existing frontage to Dean Street whilst having lot sizes similar with other lots in the block, namely 32A-32D Dean Street and 4, 4A, 6 and 8 Maria Street. The proposed lot depth will be consistent with the lots at 32A-32D Dean Street.”

(Exhibit H)

38. In relation to objective (b) of cl 4.1: ‘to ensure a variety of lot sizes are maintained of sufficient size and shape to accommodate a variety of development types’, the written request argues:

“The allotment facing Dean Street will be of a sufficient size and shape to accommodate a low density residential development consistent with the neighbouring and surrounding residential area.

Architectural drawings prepared by ‘Space 0.618:1’ accompany this clause 4.6 submission and which demonstrate that a suitable dwelling house can be sited on the subdivided allotment.”

(Exhibit H)

39. Further the written request argues that the development achieves the stated purpose of the objective (b) of the lot size standard as it will “provide the opportunity for smaller dwellings on smaller lots in order to provide for the necessary variety in housing accommodation to satisfy the changing needs of the population, particularly given the increasing growth of single persons households generally within the Sydney Metropolitan Area in the 2016 census” (Exhibit H).

40. The experts differ in the area that they agree is relevant to the assessment of the ‘prevailing subdivision pattern’. Utilising Exhibit 6 the following demonstrates the different extents of the locality relied on by each of the experts. The blue outline being the relevant area of comparison according to Mr Hansell and the red being that relied on by Mr Nash:

41. In the alternative the Council, through Mr Hansell, argues that: ‘The newly created lot fronting Dean Street will not be consistent with the prevailing subdivision pattern in the area, let alone any other existing allotment in the vicinity. Further, it is not necessary for the land to be subdivided in order to achieve a built form adjacent to Dean Street to reinforce the streetscape’ (Exhibit H). Further Mr Hansell argues that:

“- The front portion (rear yard) of the site adjoining Dean Street appears to be a vacant lot, only because it has been fenced-off on all sides and has not been embellished with landscaping and gardens.

- The fact that the site has two (2) street frontages and a lot width in keeping with other developed allotments in Dean Street does not compensate for the significant deficiencies in the sizes and depths of the proposed lots.

- It is not necessary for the land to be subdivided in order to make improvements to the site such that it enhances the streetscape.

- The mere subdivision of the site does not directly result in an improvement to the streetscape, whereas the removal of the front and side boundary fences will result in an immediate improvement to the streetscape by the elimination of these intrusive structures.

- Subdivision of the land is not necessary to achieve a built form that reinforces the streetscape and more particularly the established building line of Dean Street, as the construction of a secondary dwelling could achieve the same outcome.”

(Exhibit H)

42. The parties agree that objective (c) of the standard is not relevant to the proposed development.

Findings

43. In determining whether the ‘objectives of the standard are achieved notwithstanding the non-compliance’, and therefore compliance with the minimum lot size standard is unreasonable or unnecessary, I am satisfied that consistency means: ‘agreeing or concordant’, ‘compatible’, ‘not self-imposed or self-contradictory’ (AddenbrookePty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45]).

44. In considering whether the proposed subdivision is compatible with objective (a) of the minimum lot size standard I need to be satisfied the development is not inconsistent with the promotion of: consistent subdivision and development patterns that reflect and reinforce the predominant subdivision pattern of the area.

45. Whilst the experts disagree as to the extent of the ‘area’ relevant to the assessment I am satisfied that the area detailed by Mr Hansell is more consistent with the intent of DCP 2005 at 31(3) which defines the prevailing subdivision pattern to be: ‘... typical characteristics of up to 10 allotments either side of the subject site and the corresponding number of allotments opposite the subject site.’ I prefer Mr Hansell’s interpretation of the relevant area on these grounds.

46. Applying this area, the subdivision pattern of the lots within it can reasonably be defined as inconsistent. The exception within the area is the regularity of the lots to the northern side of Dean Street, 1 – 25 Dean Street, which have a consistency of lot width and depth. Notwithstanding this area of consistency directly opposite the site, I accept the evidence of Mr Nash at paragraph [37] that when viewed as a whole the subdivision and development pattern in the relevant area is characterised by its diversity in the relevant characteristics of size, depth, frontage, shape and amalgamation pattern.

47. Applying this predominant diversity in lot characteristics I am satisfied the proposed subdivision will result in a lot that has an area, width and shape that is compatible with the existing subdivision pattern. On this basis I am satisfied that the subdivision of 26 Dean Street is compatible with objective (a) of the standard.

48. Objective (b) of the standard seeks to ‘… ensure a variety of lot sizes are maintained of sufficient size and shape to accommodate a variety of development types’. The Applicant submits that this objective positively seeks to encourage a variety of lot sizes, with which the proposed development is compatible. I accept this submission is a fair reading of the objective, however the objective also seeks for the lot sizes to be ‘sufficient’ or feasible for permissible development.

49. Permissible development types in the R2 Low Density Residential zone include a variety of low scale residential and support uses. I note that the applicant has included a schematic design for the redevelopment of proposed Lot 1 as a free standing residential dwelling. By undertaking a comparison of the proposed lot, with the lot size and shape of adjoining lots supporting semi-detached and secondary dwellings, and considering the applicant’s schematic design, I am satisfied that the proposed subdivision is consistent with the objective (b) of the standard as it will ensure a variety of lot sizes that are sufficient for a variety of the permissible uses in the zone.

50. I accept the agreed position of the parties that objective (c) of the standard is not relevant to the proceedings.

51. For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find the proposed development is consistent with objectives of the minimum lot size standard.

52. I am satisfied that the written request has adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

Are there sufficient environmental planning grounds?

53. The Applicant’s written request must adequately demonstrate that there are sufficient “environmental planning grounds” that justify the requested variation (cl 4.6(3)(b)). In Initial Action, at [24], Preston CJ observes that there are two ways in which the request must be sufficient. Firstly, “the environmental planning grounds advanced in the written request must be sufficient to justify contravening the development standard”, and secondly: “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 (citations omitted).”

54. In considering the Applicant’s case in support of the variation, the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds must be more than the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council[2015] NSWCA 248at [15].

55. When the written submission is read as a whole the Applicant argues that there are sufficient environmental planning grounds to justify the variation on the following grounds:

“- the development allows for the use of the site for low density housing;

- it will enhance the existing streetscape;

- it will maintain the amenity for future occupants of the vacant site and minimise impacts upon adjoining properties;

- flexibility in this instance will allow for the Dean Street frontage of the site to be developed with no discernible impacts beyond a fully compliant scheme;

- currently there is a negative impact of maintaining the existing 1.8m fence and empty space fronting Dean Street;

- the existing situation creates an adverse and undesirable urban outcome and it will continue in the future unless redressed.

The proposal will enhance the urban form of Dean Street and make the streetscape uniform and consistent with that in the street.

The smaller lot size would still allow a largely DA compliant scheme to be achieved on the Dean Street allotment. Therefore, the subdivision to create 2 lots is considered very appropriate in this case.

…

KN says that the planning outcomes arising from proposed subdivision are supported and can be summarised into the following:

(a) The non-complying element of the proposed subdivision will be largely not visible from the public domain and the current frontage to Dean Street will remain unchanged. The depth of the new lot and its spatial extent will only be visible from above or looking at a cadastral map. Even then the new lot will not be dissimilar to Lots 32A-D Dean Street and 4-8 Maria Street;

(b) Any resultant detached dwelling on the new lot will significantly change, for the better, the streetscape of Dean Street, removing the “missing tooth” effect between existing dwellings at 24 and 28 Dean Street and the 1800mm timber fence that is a discordant element in the Dean Street streetscape;

(c) The architectural drawings lodged with the proposed subdivision demonstrate that a detached dwelling that complies with the relevant controls in the Strathfield LEP and DCP can be erected on the new lot with front, side and rear setbacks consistent with the locality and DCP controls and ensuring that no adverse amenity impacts are imposed on its neighbouring dwellings.

…”

(Exhibit H)

56. In the alternative Mr Hansell in the joint report argues that the environmental planning grounds advanced by the Applicant are insufficient. His reasoning is as follows:

“- The site is already used for low density housing and is not reliant upon the subdivision of the land to achieve this outcome.

- The subdivision of the land in its own right will not enhance the existing streetscape and there is no certainty that any development that follows will have a positive effect on the streetscape.

- There is no certainty that subdivision of the land and any development that follows will maintain the amenity of future occupants of the proposed vacant lot and minimise impacts upon adjoining properties.

- The site does not need to be subdivided in order for the vacant portion of the site adjoining Dean Street to be developed.

- The site does not need to be subdivided in order to facilitate the removal of the existing boundary fencing adjoining Dean Street that makes a negative contribution to the streetscape.

- It is unclear as to how maintaining the 'empty space' fronting Dean Street currently has a negative impact.

- It is unclear as to how the existing situation creates an adverse and undesirable urban outcome and how it will continue in the future unless redressed.”

(Exhibit H)

Findings

57. The environmental planning grounds relied on by the Applicant must be ‘sufficient’. By reference to cl 4.6(4)(a)(i) the grounds advanced in the written request must: firstly be sufficient to justify the contravention of the standard and secondly “the written request must demonstrate there are sufficient 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]”: Initial Action at [24].

58. In my assessment the written request fails to provide sufficient environmental planning grounds to justify the contravention of the lot size standard. Having considered the grounds put forward by the Applicant in support of the variation to the minimum lot size standard I find that:

1. The reasoning outlined in the written request does not focus appropriately on the aspect of the development that contravenes the development standard (i.e. those that arise as a result of an undersized lot), as opposed to the benefits that arise from the development as a whole.

2. Whilst the Court’s decision in Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 at [34] notes that: ‘establishing that the development would not cause environmental harm and is consistent with the objectives of the development standards is an established means of demonstrating that compliance with a development standard is unreasonable or unnecessary’, I am not satisfied that ‘absence of any significant impact from the proposed non-compliance on the amenity of the neighbouring properties or upon the character of the area’ (Exhibit H) is a sufficient environmental planning ground to justifies a variation to the minimum lot size development standard.

3. The argued improvement to urban form and streetscape (refer paragraph [55]), and the stated benefits arising from the residential use of the site, that are relied on by the applicant do not arise from the development application under appeal or from the variation to the minimum lot size standard. The application under appeal is for Torrens Title subdivision only. Further I accept the evidence of Mr Hansell that further residential use of the land is not intrinsically linked to the subdivision. In my view these grounds do not therefore justify a variation to the minimum lot size standard.

4. The written submission alludes to the justification of the variation to the minimum lot size on the basis of promoting ‘the efficient and spatially appropriate use of the land’. I find that the written request falls short of providing adequate and particularised substantiation to justify the variation on this ground which is presented only as a generalised statement. Further, when read in context, the statement (at (xi) in paragraph [55] above) is addressing the future development of the land for residential housing rather than the subdivision itself.

5. In my assessment the remaining reasoning, detailed at [55], provided by the applicant falls short of adequately justifying the variation sought.

59. Having not reached the state of satisfaction required by cl 4.6(4)(a)(i), cl 4.6(4) makes it clear that development consent must not be granted. Accordingly, there is no power to grant development consent and the development application must be refused.

Orders:

60. The orders of the Court are:

1. The applicant is granted leave to rely on amended plans;

2. The objection pursuant to cl 4.6 of the Strathfield Local Environmental Plan 2012 in respect of the minimum lot size standard is not sustained;

3. The appeal is dismissed;

4. Development application DA 2017/132 for Torrens title subdivision of 26 Dean Street, South Strathfield is refused;

5. The exhibits are returned with the exception of Exhibits A, B, H and 4.

……………………..

D M Dickson

Commissioner of the Court

Decision last updated: 05 April 2019