Peric v Randwick City Council

[2018] NSWLEC 1509

Land and Environment Court

New South Wales

Medium Neutral Citation:	Peric v Randwick City Council [2018] NSWLEC 1509
Hearing dates:	10 September 2018
Date of orders:	08 October 2018
Decision date:	08 October 2018
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The orders of the Court are: (1)   The appeal is dismissed; (2)   Development Application No. DA/687/2017 for demolition of an existing dwelling, garage and shed, Torrens title subdivision of the land into two lots, and construction of two semi-detached dwellings with garages and associated landscaping and fencing is determined by refusal; (3)   The exhibits are returned, with the exception of Exhibits A, B and 1.
Catchwords:	DEVELOPMENT APPLICATION: Torrens title subdivision of land – minimum subdivision lot area development standard – whether the Applicants’ environmental planning grounds are sufficient to uphold a cl 4.6 written request under RLEP
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environment Plan 2012
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Gabriel Stefanidis v Randwick City Council [2017] NSWLEC 1307 Initial Action Pty Ltd v Woollahra Council [2018] NSWLEC 118 Randwick City Council v Micaul Holdings Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Randwick Development Control Plan 2012
Category:	Principal judgment
Parties:	Mirko Peric (First Applicant) Jovan Davidovic (Second Applicant) Randwick City Council (Respondent)
Representation:	Counsel: N Eastman (Applicants)   Solicitors: Mills Oakley (Applicants) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2018/81244
Publication restriction:	No

Judgment

1. COMMISSIONER: Mirko Peric and Jovan Davidovic (the Applicants) have appealed the deemed refusal by Randwick City Council (the Respondent) of their Development Application No. DA/687/2017.1 for demolition of an existing dwelling, garage and shed, the Torrens title subdivision of land into two lots, and construction of two semi-detached dwellings, with two garages and associated landscaping and fencing (the proposed development).

2. The proposed development would be located at 273 Beauchamp Street, Matraville (the Subject Site).

3. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

4. The Subject Site is zoned R2 Low Density Residential under the provisions of Randwick Local Environment Plan 2012 (RLEP), and the proposed development is permissible on the Subject Site, with consent.

5. An inspection of the Subject Site was undertaken as part of a conciliation conference under the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). No objectors sought to make submissions in relation to the proposed development.

6. At the commencement of the conciliation phase of the proceedings, the Parties advised that two matters that had been in contention between them had been resolved. These concerned the following issues:

1. the front setback of the proposed development – the Parties confirmed that based on advice they had received from their planning experts, this matter was no longer pressed by the Respondent;

2. potential adverse privacy impacts on an adjoining property due to the proposed design of a kitchen window. The Parties confirmed that they had agreed that this contention could be resolved though a proposed condition of consent, should the proposed development be approved.

7. As the remaining contentions between the parties were unable to be resolved, the conciliation process was terminated, and the matter proceeded to hearing as required under s 34AA of the LEC Act.

8. Those remaining contentions all concerned the proposed subdivision of the Subject Site in relation to the proposed lot size, lot width and character of the resulting lots.

Statutory context

Environmental Planning and Assessment Act 1979

9. The objects 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.

10. 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.

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

(3A) Development control plans

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.…

Randwick Local Environmental Plan 2012

12. Development on the Subject Site is subject to the provisions of RLEP. The following provisions of RLEP are of particular relevance in this appeal:

1. Clause 2.1, which establishes land use zones within the area covered by the plan as provided in cl 2.2 of RLEP. The Subject Site is zoned R2 Low Density Residential, and under the provisions of cl 2.3 of RLEP, 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.

• recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

• protect the amenity of residents.

• encourage housing affordability.

• enable small-scale business uses in existing commercial buildings

1. A dual occupancy (attached) development such as is proposed by the Applicant in this matter, is permissible with consent on land zoned R2.

2. Clause 4.1, which concerns minimum subdivision lot sizes, and which provides as follows:

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

(a) to minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties,

(b) to ensure that lot sizes allow development to be sited to protect natural or cultural features, including heritage items, and to retain special features such as trees and views,

(c) to ensure that lot sizes are able to accommodate development that is suitable for its purpose.

(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.

(4) This clause does not apply in relation to the subdivision of any land:

(a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or

(b) by any kind of subdivision under the Community Land Development Act 1989.

1. The proposed development is for subdivision of the Subject Site to result in two Torrens title lots, and so the provisions of cl 4.1 apply to the proposed development;

2. The minimum size of lots resulting from subdivision of the Subject Site, as provided in the Lot Size Map in RLEP, is 400m². The two lots that would result from the proposed subdivision of the Subject Site would each have area of 384.75m², which is below the development standard applicable to the Subject Site.

13. Clause 4.6 which makes provision for proponents to seek an exception to a development standard, and which, in relation to this appeal, 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...

Randwick Development Control Plan 2013

14. The Introduction to Randwick Development Control Plan 2013 (“RDCP”) identifies that the purpose of the plan is as follows:

This DCP provides detailed guidance for development applications (DAs) to supplement the provisions of the Randwick Comprehensive Local Environmental Plan (RLEP). The DCP includes objectives and controls for ensuring well designed, quality land use and development within the Local Government Area (LGA) to enhance Randwick City as a vibrant community and desirable place to live, work and visit.

15. Part C1 of RDCP provides guidance and controls relating to low density residential developments. Of particular relevance in the current appeal are the provisions of cl 2.1 within Part C1 in relation to minimum lot size and frontage and which has the following objectives:

• To ensure land subdivision respects the predominant subdivision and development pattern of the locality.

• To ensure land subdivision creates allotments that have adequate width and configuration, to deliver suitable building design and to maintain the amenity of the neighbouring properties.

Contentions

16. As discussed above at [8], the remaining contentions in this appeal all concerned the proposed subdivision of the Subject Site, in particular the proposed lot size, lot width and character of the resulting allotments. The specific questions requiring resolution in this appeal, and which I will address in turn, are:

1. Should the Applicants’ written request to vary the minimum lot size development standard prescribed for the Subject Site under cl 4.1 of RLEP be upheld?

2. Is the width for the proposed lots acceptable given that these are less than the width required under the controls in cl 2.1 of Part C1 of RDCP?

Should the Applicants’ written request to vary the minimum lot size development standard prescribed for the Subject Site under cl 4.1 of RLEP be upheld?

17. The Applicants’ have submitted a written request under the provisions of cl 4.6 of RLEP to vary the minimum subdivision lot development standard under cl 4.1 of RLEP. This request was prepared by ABC Planning and was tendered as evidence at the hearing.

18. The lot size development control in cl 4.1 of RLEP is not a development standard that is expressly excluded from the operation of cl 4.6(2), and so the Applicants’ written request to vary this standard can be considered in this appeal.

19. The provisions of cll 4.6(3) and 4.6(4) of RLEP include preconditions to the exercise of power to grant consent, and I must be satisfied that the preconditions have been met in order for consent to be granted to the Applicants’ proposed development.

20. In assessing the Applicants’ cl 4.6 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 requests

21. The approach to determining a cl 4.6 request has been the subject of a recent judgment of Preston CJ in the matter of Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (referred to hereafter as Initial Action), in which His Honour 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 the requirements for a cl 4.6 written request to be upheld.

22. In Initial Action, His Honour said 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.

23. 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.”

24. Finally, the Chief Justice 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).”

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

(ii) 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.

26. Under cl 4.6(3) of RLEP, 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:

(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 standard.

27. I will address each of these requirements in turn.

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

28. 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 (referred to hereafter as Wehbe) in which His Honour identified five pathways that could be applied to establish whether compliance is unreasonable or unnecessary.

29. These are to establish that:

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

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

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

5. “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.

30. The Applicants’ cl 4.6 written request to vary the minimum subdivision lot size development standard asserts that compliance with the standard is unreasonable or unnecessary because the proposal complies with the objectives of the standard.

31. The objectives of the standard in cl 4.1 were identified above at [12(2)], and are:

(a) to minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties,

(b) to ensure that lot sizes allow development to be sited to protect natural or cultural features, including heritage items, and to retain special features such as trees and views,

(c) to ensure that lot sizes are able to accommodate development that is suitable for its purpose.

32. The Parties agreed that objective (b) was not relevant to the proposed development as there are no natural or cultural features, nor special features such as trees and views, that are associated with the Subject Site, and that would require protection.

33. The Parties also agreed that objectives (a) and (c) were of relevance to the proposed development, and therefore merited consideration in this appeal.

34. Objective (a) requires that the Applicant minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties. The Applicants’ written request stated that the proposed subdivision would not be ‘responsible for any increased external amenity impacts above and beyond that of a compliant lot’.

35. Later in the cl 4.6 written request, the author stated that:

“Each of the proposed lots are to be constructed with semi-detached dwellings that have been designed to exhibit a high degree of compliance with Council’s building envelope controls. It is therefore considered the proposed subdivision is capable of occurring without resulting in any significant adverse impacts upon the amenity of neighbouring properties.”

36. The cl 4.6 written request also said, albeit in relation to a discussion concerning objective (c), that the proposed development included a ‘lack of shadow, privacy and view impacts’.

37. During the hearing, the Applicants’ cl 4.6 written request was the subject of testimony from the Parties‘ expert planners:

1. Mr Jeff Mead, for the Respondent; and

2. Mr Anthony Betros, for the Applicant.

38. In his testimony, Mr Mead said that if the built form proposed by the Applicants was submitted to Council within a development application that did not include a proposal for subdivision of the Subject Site, it would, in his opinion, merit consent. Mr Betros concurred with this assessment.

39. Mr Betros said that, in his opinion, and as stated in the Applicants’ cl 4.6 written request, the proposed development did not give rise to any streetscape amenity impacts, which he said was consistent with the requirements of objective (a).

40. The expert planners did not identify any impacts from the proposed development that would impact on the amenity of neighbouring properties.

41. Having considered the Applicants’ cl 4.6 request, together with the testimony of the expert planners, I am satisfied that the proposed development has minimised any likely adverse impacts on the amenity of neighbouring properties, and that, as a consequence, the Applicants’ have satisfactorily demonstrated that the proposed development is consistent with objective (a) of the minimum subdivision lot size standard in RLEP.

42. Objective (c) of the development standard requires that a proposed development should ensure that lot sizes are able to accommodate development that is suitable for its purpose. I am also satisfied that the proposed development is consistent with this objective. This conclusion is based on the following considerations:

1. The proposed development is compliant with the development standards and controls within RLEP and RDCP (documented within the Applicants’ cl 4.6 written request) concerning:

1. building height (RLEP cl 4.3);

2. site coverage (RDCP Pt C1 cl 2.3);

3. private open space (RDCP Pt C1 cl 2.5);

4. deep soil landscaping (RDCP Pt C1 cl 2.4);

5. side setbacks (RDCP Pt C1 cl 3.3);

6. rear setback (RDCP Pt C1 cl 3.3).

2. Mr Mead’s testimony during the hearing (see above [38]) that the proposed built form was acceptable, and that if it were submitted to Council without an application for subdivision of the Subject Site it would, in his opinion, merit consent;

3. Mr Betros’ testimony (see [39]), which was consistent with that of Mr Mead in relation to the acceptability of the proposed built form, and which also noted that the proposed development would not, in his opinion, give rise to any streetscape amenity impacts.

43. Based on my conclusions at [41] and [42], I am satisfied that the Applicants’ have demonstrated that compliance with the development standard is unreasonable and unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

Are there are sufficient environmental planning grounds to justify the proposed development contravening the standard?

44. The approach by which a cl 4.6 written request should demonstrate that there are sufficient environmental planning grounds to justify contravening the standard was also discussed 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 EPA Act, including the objects in s 1.3 of the EPA Act.”

45. The objects of the EP&A Act were provided above at [9].

46. Preston CJ 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].”

47. The Applicants’ cl 4.6 written proposed six reasons as the basis for demonstrating the sufficiency of environmental planning grounds used to justify the contravention of the minimum lot size development standard. My assessment of each of these six reasons in relation to the requirements of cl 4.6(3)(b), and cognisant of the guidance provided by Preston CJ in Initial Action, is as follows:

1. “The departure from the minimum lot size will not result in any significant adverse environmental amenity impacts, with the proposed lots being of adequate size and shape to suitably support the approved development”.

1. In my assessment, this reason it is insufficient to justify the variation to the minimum subdivision lot size because:

1. the testimony of both expert planners was that, while the Applicants’ proposed built form was acceptable in terms of the standards and controls applicable to the Subject Site under RLEP and RDCP, subdivision of the Subject Site was not required in order to achieve this outcome on the Subject Site;

2. the further testimony of both expert planners was that subdivision of the Subject Site is not required to reduce or minimise any environmental impacts that may arise from the proposed development;

3. while the testimony of the experts planners above at [i] and [ii], demonstrates that that the Subject Site could be subdivided without any significant adverse environmental amenity impacts, I am not satisfied that this demonstrates that it should be subdivided, and, therefore, that it justifies contravention of the relevant development standard;

4. this reason does not rely on grounds related to the subject matter, scope and purpose of the EP&A Act as a basis for justifying the proposed variation to the development standard;

2. “The proposed subdivision is consistent with the north-south orientation of allotments within the immediate area and is also consistent with the lot width of that at 271 Beauchamp Rd (DA/438/2016) which confirms that the subject site and that at 271 Beauchamp Rd will have the same appearance within the streetscape. This is consistent with the assessment report which approved 271 Beauchamp Rd and the proposed development would also be consistent with the approved dual occupancy development at 275 Beauchamp Rd (which is also subject to a Torrens title subdivision application)”.

1. In my assessment, this reason it is insufficient to justify the variation to the minimum subdivision lot size because:

1. the Subject Site currently has a north-south orientation;

2. contravention of the development standard is not required in order to achieve the proposed streetscape outcome of the proposed development. The expert planners agreed the built form proposed for the Subject Site was acceptable and could be constructed on the Subject Site without subdivision;

3. this reason does not rely on grounds related to the subject matter, scope and purpose of the EP&A Act as a basis for justifying the proposed variation to the development standard.

3. “It is considered that the proposal will result in a beneficial outcome by way of enabling the proposed dwellings to each be sited on individual allotments, noting that the built form would be indiscernible from the approved/constructed dual occupancy/semi-detached dwellings either side. As such, there will be no change to the character of the streetscape nor will be there be any additional external amenity impacts upon neighbouring properties. The proposed lot sizes will provide for two dwellings with a high level of internal amenity with both having well-planned living, bedroom and outdoor private open spaces. The proposed lot sizes therefore provide for sufficient environmental amenity to the proposed dwellings associated with the proposed lot sizes”.

1. In my assessment, this reason it is insufficient to justify the variation to the minimum subdivision lot size because:

1. there are no reasons provided within the cl 4.6 written request as to why having each of the proposed dwellings sited on individual allotments would result in a ‘beneficial outcome’, nor was there an explanation of the nature of the beneficial outcome that would result. The observation within the cl 4.6 written request that the buildings would be sited on individual allotments is, in my assessment, a statement of fact, and does not represent a rationale for contravention of the standard, and so does not justify the contravention sought. In summary, I am of the view that the assertion of a beneficial outcome within the text, does not demonstrate that a beneficial outcome will follow;

2. as identified above at [(2)(a)(ii)], a variation to the development standard is not required to achieve the proposed streetscape outcome of the proposed development;

3. subdivision of the Subject Site is not required to achieve two dwellings with the same level of internal amenity including the proposed living, bedroom and outdoor private open spaces;

4. the environmental amenity of the proposed dwellings would be the same with or without subdivision of the Subject Site; and

5. this reason does not rely on grounds related to the subject matter, scope and purpose of the EP&A Act as a basis for justifying the proposed variation to the development standard.

4. “Of importance, it is noted that the proposed lot sizes are capable of accommodating semi-detached dwellings with a compliant height and FSR whilst also outperforming a number of Council’s DCP controls, including site coverage deep soil planting, private open space and side setbacks”.

1. In my assessment, this reason it is insufficient to justify the variation to the minimum subdivision lot size because:

1. based on the testimony of the expert planners (see above at [(1)(a)(i)] and [(1)(a)(ii)], the Subject Site in its current form, and without subdivision, is capable of accommodating the same semi-detached dwellings with compliant height and floor space ratio (FSR), and outperforming a number of Council’s DCP controls to the same extent, including in relation to site coverage, deep soil planting, private open space and side setbacks. Consequently, this reason does not provide a justification for proposed contravention of the development standard;

2. this reason does not rely on grounds related to the subject matter, scope and purpose of the EP&A Act as a basis for justifying the proposed variation to the development standard.

5. “The absence of external impacts associated with the proposed lot sizes and the associated dwellings confirms that there are sufficient environmental grounds to support the variation in this instance. In this regard, it is reiterated that the proposed variation would not generate any adverse or unreasonable streetscape, shadow, privacy, visual bulk or view loss impacts”.

1. In my assessment, this reason it is insufficient to justify the variation to the minimum subdivision lot size because:

1. it was the testimony of the expert planners that subdivision of the Subject Site was not necessary in order that the Applicants’ proposed built form be constructed on the Subject Site;

2. it was the further testimony of the expert planners that subdivision of the Subject Site is not required to minimise any potential impacts that may arise from the proposed development; and

3. this reason does not rely on grounds related to the subject matter, scope and purpose of the EP&A Act as a basis for justifying the proposed variation to the development standard.

6. “The proposed development represents an orderly and economic use of the site, with no adverse environmental impacts above and beyond that of a compliant lot size. It is therefore considered that there are sufficient environmental planning grounds to justify contravening the development standard, particularly given that the proposal achieves the objectives of the R2 Low Density Residential zone and that of the development standard”.

1. In my assessment, this reason it is insufficient to justify the variation to the minimum subdivision lot size because:

1. while the cl 4.6 written request states that the proposed development represents an orderly and economic use of the site, it does not give reasons for this assertion. In my assessment, the assertion of this outcome, albeit reflecting an object of the EP&A Act, does not demonstrate that it is the case. In order for this reason to be sufficient such that I would be satisfied that the contravention of the development standard is justified, the cl 4.6 request should have included a clear rationale supporting the assertion that subdivision represented the orderly and economic use of the Subject Site. This was lacking in the cl 4.6 written request before me in this appeal;

2. it was the testimony of the expert planners that subdivision of the Subject Site was not required to minimise potential impacts that may arise therefrom. In my assessment, the absence of adverse environmental impacts above and beyond that of a compliant lot size does not provide sufficient environmental planning grounds justifying a variation to the minimum subdivision lot size development standard.

48. Based on the above considerations, I have concluded that the Applicants’ cl 4.6 written request to vary the minimum subdivision lot size development standard has not demonstrated that there are sufficient environmental planning grounds to justify the variation to the standard as proposed.

49. As a consequence, I am not satisfied that the Applicants’ cl 4.6 written request has demonstrated that there are sufficient environmental planning grounds to justify contravening the standard as required under cl 4.6(3)(b) of RLEP.

50. As satisfaction on this point is required as a precondition to the grant of consent, I have concluded that I cannot grant consent to the Applicants’ proposed development.

51. During the hearing, the Applicants’ brought to the Court’s attention the judgment of the Commissioner in the matter of Gabriel Stefanidis v Randwick City Council [2017] NSWLEC 1307 (referred to below as Stefanidis), in which the Commissioner had granted consent to the subdivision of land in circumstances that the Applicants’ said were similar to those in this appeal.

52. While the decision of the Commissioner in Stefanidis does not bind me in this appeal, I have reviewed the findings of the Commissioner in that case and I have concluded that the considerations before the Commissioner in Stefanidis differed from those in this appeal.

53. I base this conclusion on the Commissioner’s summary (at [28]) and narrative ([at 29]) concerning reasons provided by the Applicant within its cl 4.6 written request to vary the minimum subdivision lot size development standard. Those reasons differ to those provided in this case (see above at [47]). I also did not have before me in this appeal the same evidence as was before the Commissioner in Stefanidis.

Conclusion

54. Based on my findings above at [49] and [50], and my assessment of the Applicants’ cl 4.6 written request to vary the development standard for subdivision minimum lots size in RLEP, I have concluded that:

1. The Applicants’ cl 4.6 written request to vary the minimum subdivision lot size development standard in cl 4.1 of RLEP should not be upheld;

2. As satisfaction in relation to the Applicants’ cl 4.6 request is a precondition to the grant of consent, and as I have concluded that the cl 4.6 request should not be upheld, it is unnecessary for me to consider the remaining contentions in this matter.

Orders

55. The orders of the Court are:

1. The appeal is dismissed;

2. Development Application No. DA/687/2017 for demolition of an existing dwelling, garage and shed, Torrens title subdivision of the land into two lots, and construction of two semi-detached dwellings with garages and associated landscaping and fencing is determined by refusal;

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

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M Chilcott

Commissioner of the Court

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Decision last updated: 08 October 2018