Ray Saar v Canterbury-Bankstown Council

[2017] NSWLEC 1340

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ray Saar & Anor v Canterbury-Bankstown Council [2017] NSWLEC 1340
Hearing dates:	28 June, 2017
Date of orders:	29 June 2017
Decision date:	29 June 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is upheld. 2. Development Application No’s 432/2016 and 433/2016 for the construction of attached dual occupancies and Torrens Title subdivision at No.’s 10 and 12 Tempe Street, Earlwood are approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits 2 and 3, are retained.
Catchwords:	DEVELOPMENT APPLICATIONS: minimum lot size for dual occupancy development and subdivision
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Canterbury Local Environmental Plan 2012
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827 Greenpark Projects 2 Pty Ltd v Canterbury Bankstown Council [2016] NSWLEC7
Category:	Principal judgment
Parties:	Ray Saad (First Applicant) Ramzi Srour (Second Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Solicitors: Mr A Whealy, Mills Oakley (Applicant) Mr A Seton, Marsdens Law Group (Respondent)
File Number(s):	17/67557 and 17/67558

Judgment

1. The applicant lodged Development Application No’s 432/2016 and 433/2016 with Canterbury-Bankstown Council in September 2016 (the applications). The applications were for development on two adjoining vacant lots being 10 Tempe Street and 12 Tempe Street, Earlwood.

2. The applications sought consent to subdivide each of the lots into two Torrens Title lots and erect a dual occupancy on each new lot resulting in 4 dwellings on 4 lots.

3. The issue in contention was the size of the existing and the proposed lots which did not comply with the minimum lot size development standards under the Canterbury Local Environmental Plan 2012 (the LEP), and whether or not the pre-conditions to consent under clause 4.6 of the LEP are met which justify the variation to the standards sought.

4. The lot size non-compliances were the only contended issue and were common to both applications. The cl 4.6 written requests for each application were identical in their justification to vary the lot size standards. The Court was therefore requested to deal with both applications concurrently and in a single decision.

The sites and their context

5. The sites comprise Lot A (No. 10 Tempe Street) and Lot B (No. 12 Tempe Street) in DP 355827. They are located on the western side of Tempe Street with Lot B to the south of Lot A. Lot B is a corner site which also has frontage to Unwin Street. There is a rocky outcrop located towards the front of both sites extending along the width of the properties. There is no significant vegetation on either site and both sites slope steeply from the front boundary to the rear in excess of 8m.

6. Development in the locality is varied with the area undergoing transition from older housing stock to new low density residential development. On the opposite side of Tempe Street is Wentworth Park which is located on the Cooks River and contains a velodrome. Dwelling houses adjoin to the rear (west). To the south of Lot B, on the opposite side of Unwin Street, is a single storey dwelling. A new dwelling house has been approved to the north of Lot A at 8 Tempe Street with excavation for that dwelling currently underway.

Background and the proposal

7. The applications seek to construct an attached dual occupancy dwelling on each of the sites following Torrens title subdivision of each site into two. The proposed four dwellings are two and partially three storeys in height with orientation to and access from Tempe Street. Given the elevated nature of both sites, and the existence of the rock outcrop, excavation is required.

8. The appeals were subject to mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i). For the conciliation, the applicant had however prepared amended plans for both applications which responded to a number of the contentions raised by the Council. The amendments were agreed by the parties to be minor and Leave was granted by the Court to the amended plans as comprising the applications as amended.

9. The effect of the modifications was to reduce the overall floor space of the dwellings to achieve floor space ratio (FSR) compliance, increase setbacks, decrease the width of the driveways and garages, and provide additional private open space. For the proposed southern dwelling on Lot B, the materials were changed to the southern facade to improve the streetscape presentation to Unwin Street. The height of the dwellings complied with the maximum height limit under the LEP with minor non-compliances with the wall height under the Canterbury Development Control Plan 2012 (the DCP) for two of the dwellings, being the dwelling on each of the proposed southern lots.

10. The Council advised that the amended plans addressed all of the contentions raised other than the minimum lot sizes. The resolved contentions related to FSR, streetscape, setbacks, external wall height, retaining walls and cut, private open space, amenity, roof design, and on street car parking.

11. The only remaining contentions were that consent should be refused due to non-compliances with the development standards for minimum lot size for dual occupancy development and the resultant subdivided lots which would not comply with the development standard for subdivision of dual occupancy development. The Council contended that the cl 4.6 requests lodged to support the requested variations to these development standards were not well founded and the standards should not be varied.

The planning controls

12. The sites are zoned R2 Low Density Residential pursuant to the provisions of the LEP.

13. The proposed use of the sites is permissible in the R2 zone. The only other residential uses permissible in the R2 zone are boarding houses, dwelling houses and semi-detached dwellings.

14. The relevant aims of the LEP are:

(a) to provide for a range of development that promotes housing, employment and recreation opportunities for the existing and future residents of Canterbury,

(b) to promote a variety of housing types to meet population demand,

(c) to ensure that development is of a design and type that supports the amenity and character of an area and enhances the quality of life of the community.

15. Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R2 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.

16. Part 4 of the LEP contains Principal development standards with clauses 4.1, 4.1A and 4.1B relevant to the application. Those clauses are in the following form:

4.1 Minimum subdivision lot size

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

(a) to ensure that subdivision reflects and reinforces the predominant subdivision pattern of the area,

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

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

(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.

(3A) …

4.1A Minimum lot sizes for dual occupancies and dwelling houses in certain residential zones

(1) The objective of this clause is to achieve planned residential density in certain residential zones.

(2) This clause applies to land in the following zones:

(a) Zone R2 Low Density Residential,

(b) Zone R3 Medium Density Residential,

(c) Zone R4 High Density Residential.

(3) Development consent must not be granted to development for the purpose of a dual occupancy on land to which this clause applies unless the area of the lot is at least 600 square metres.

(4) If a lot on land to which this clause applies is a battle-axe lot or other lot with an access handle, development consent must not be granted to development for the purpose of a dwelling house on that lot unless the area of the lot is at least 600 square metres.

4.1B Minimum subdivision lot size for dual occupancies

(1) The objective of this clause is to ensure that appropriate minimum lots sizes are provided for the subdivision of land for dual occupancies.

(2) Despite clauses 4.1 and 4.1A, development consent may be granted to a development application for the subdivision of land if:

(a) there is an existing dual occupancy that was lawfully erected under an environmental planning instrument on the land, or

(b) the application also provides for the erection of a dual occupancy on the land.

(3) Development consent may be granted to the subdivision of land under this clause only if:

(a) the lot size of each resulting lot will be at least 300 square metres, and

(b) there will be one dwelling on each resulting lot.

17. Clause 4.4 is also relevant and provides for a maximum floor space ratio of 0.5:1. The parties agree that the amended plans comply with that development standard.

18. The area of Lot A is 597.5m². The area of Lot B is 594m². The existing lots are therefore 2.5m² and 6m² respectively less than the 600m² required for dual occupancy development pursuant to cl 4.1A of the LEP.

19. The applications propose subdivision of Lots A and B so that each proposed dual occupancy dwelling would be contained on its own Torrens Title allotment. The proposed areas of the two lots following the subdivision of Lot A will be 297.33m² and 300.17m² respectively. For the subdivision of Lot B, the respective two lot areas would be 295.32m² and 298.64m². Therefore three of the proposed four lots do not meet the minimum lot size prescribed in cl 4.1B of the LEP. They are deficient by 2.67m², 4.68m² and 1.36m² respectively.

20. Clause 4.6 of the LEP is in the following form:

(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…….

21. The concurrence of the Secretary was assumed and not in dispute between the parties.

22. The issue is whether it is appropriate to allow developments that do not satisfy the development standards under cl 4.1A and cl 4.1B of the LEP based on the pre-conditions to vary those standards required by cl 4.6.

The evidence and relevant issues

23. No expert evidence was called as the parties had agreed that all of the design issues associated with the developments had been resolved and only legal submissions were required on the adequacy of the cl 4.6 variation requests to justify the non-compliance with the LEP site area controls.

24. That is a jurisdictional test that must be passed for consent to be granted regardless of the other contentions having been satisfied.

25. Clause 4.6 requires that the applicant make a written request seeking to justify any contravention of a development standard. The consent authority, in this case the Court, must consider such a request and be satisfied that it adequately demonstrates that compliance with the development standard(s) is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard(s).

26. The Court must, separately to considering the adequacy of the cl 4.6 requests, also be satisfied that the proposed developments will be in the public interest because they are consistent with the objectives of the particular standard(s) and the objectives for development within the zone in which the developments are to be carried out.

27. It is implicit but not necessary for cl 4.6 requests to demonstrate that the public interest test is met in terms of consistency with the objectives of the standard or the zone. That test is for the Court to be satisfied on. Nevertheless, it is common practice for cl 4.6 requests to also address this issue to assist the Court in determining whether or not the Court should be satisfied in granting the contravention(s) sought.

The clause 4.6 written requests

28. Mr Threlfo, a planning expert engaged by the applicant, had prepared written requests seeking to vary the development standards contained in cl 4.1A and 4.1B of the LEP for each application, as is required by cl 4.6. The requests are identical in their arguments seeking to justify the contraventions sought. They deal with both the contravention to the site area required for dual occupancy development (the development lot size standard) and with the subdivision site area requirements (the subdivision lot size standard) although the arguments to vary both standards are largely the same.

29. As indicated, cl 4.6 imposes two tests in terms of cl 4.6 requests: that the Court is satisfied that the requests adequately address that compliance with the development standard(s) is unreasonable or unnecessary in the circumstances of the case; and, that there are sufficient environmental planning grounds to justify contravening the development standard(s).

30. Mr Threlfo’s written objection is styled using the guidance of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827. That decision sets out five ways of demonstrating that compliance with a development standard is unreasonable or unnecessary. They are:

1. 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 in 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 consent departing from the standard;

5. the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary is applied to the land.

31. Mr Threlfo relies on the first test only as the others are agreed not to apply to the circumstances of the applications. That test is whether the objectives of the development standards are achieved notwithstanding non-compliance with the standards.

32. The only objective for the development lot size standard is that the development achieves the planned residential density of the zone which, for the R2 zone, means low density. In terms of the subdivision lot size standard, the only objective is to ensure that appropriate minimum lots sizes are provided for the subdivision of land for dual occupancies.

33. Although not well articulated, the clause 4.6 requests acknowledge that the objective of the development lot size standard firstly needs to be met, that is the development achieves the planned residential density for the zone. Secondly, that the subdivided lot sizes must be appropriate for the dual occupancies proposed.

34. The requests claim compliance with the development and subdivision lot size standards in these instances is unreasonable or unnecessary for the following reasons (which I have paraphrased):

1. The R2 zone allows residential development in the form of dwelling houses, dual occupancy and boarding houses. The density of such development is principally controlled by the FSR standard. Compliance with the FSR is therefore the best measure of satisfying the objective of achieving the planned residential density for the zone. Apartments are not permissible in the R2 zone as distinct from the R3 zone therefore there can be no ambiguity about the planned residential density in the R2 zone.

2. Put another way, the density of development is best controlled through FSR rather than a lot size standard. There is no departure from the required FSR standard.

3. Not only do the developments achieve the planned residential density in the zone because of the compliance with the FSR for all of the proposed dwellings, but all dwellings also comply with the building height standard for the R2 zone.

4. The built form also complies with the controls in the DCP except for the minor wall height/storeys non-compliance which results as a consequence of the topography of the land not the areas of the lots.

5. As the design of the proposed dwellings is considered to be suitable, the proposed lot sizes must be appropriate.

6. The non-compliances with the lot areas of both standards are less than or in the order of 1% of the required areas. They are so close to achieving compliance that the non-compliances will be entirely imperceptible to the human eye.

7. The minor departures from the development standards do not result in a form of development which is unsuitable for the locality or which is not consistent with the form of development existing or likely on other residential lots nearby.

35. In terms of demonstrating that there are sufficient environmental planning grounds to justify contravening the development standards, the cl 4.6 requests argue similar grounds as outlined above. They also state that the proposed developments will provide a suitable streetscape presentation to Tempe Street, that the proposed dwellings do not have any amenity impacts on other residential properties, and that the front setback of 6m exceeds the required front setback of 5.5m which leads to a perception in the streetscape that the developments, with generous front setbacks, comfortably meet the relevant lot size and subdivision lot size controls (for the R2 zone). The private open space requirement of 50m² is also provided supplemented by planter beds along rear boundaries.

35. These (design factors) indicate that the proposed developments are not overdevelopment of their sites despite the small shortfall in lot sizes. They also meet the objective of ensuring that appropriate minimum lot sizes (for the form of development proposed) are provided.

36. Whilst not required to be addressed, the cl 4.6 requests also argue that the proposed developments are in the public interest because they meet the objectives of the standard and the zone. In particular, that:

1. The deficiency in site areas to allow the dual occupancy developments and subdivisions to occur is hardly sufficient to result in development that is not consistent with the objectives of the standard and zone, achieving the planned residential density.

2. Despite the fact that three of the four lot sizes proposed are just under 300m², they contain buildings which comply with the relevant standards for FSR and height which are the appropriate standards to control dwelling sizes rather than a lot size numeric.

3. The lot sizes proposed are suitable for dwellings as provided for in the Council’s standards and guidelines for dual occupancy development. Therefore, the zone objective of providing for the housing needs of the community is achieved.

4. The dwellings are all 3 to 4 bedrooms which are suitable for family accommodation with the required area of private open space and a pleasant level of environmental amenity.

5. The development will not impact on the amenity of other residential properties and is not unsuitable in the streetscape. The dwellings therefore fit in with that anticipated type of development which will take place on other vacant lots in Tempe Street.

Submissions

38. Mr Seton for the Council submitted that the cl 4.6 requests make no assessment of what the planned residential density for the R2 zone is, which is referenced in the only objective for the development standard which sets the minimum site area for dual occupancy development at 600m².

39. Mr Seton noted that a range of dwelling types were permitted in the R2 zone. He said it was irrelevant that other standards, which have different objectives, might be complied with in the developments as they don’t relate to the lot size standard. The minimum 600m² standard was not confined to the area the subject of these developments, but applied to the R2 zone across the municipality.

40. Both parties cited the Court’s decision in Greenpark Projects 2 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1003. In that decision, which was also for a dual occupancy development and subdivision in the Canterbury LEP area where minimum lot sizes could not be achieved, Commissioner Morris refused the application as the cl 4.6 request and argument in that case did not convince her that the discretion under clause 4.6 to vary the minimum lot areas required, should be applied. A key part of her decision was that the applicant had not demonstrated that the development achieved the planned residential density of the zone, albeit in that instance, development was proposed in the R3 not the R2 zone.

41. Mr Seton queried whether the Court had sufficient information to conclude that the proposed developments, despite the deficiencies in lot areas, could achieve the planned residential density of the zone. He also argued that, as referenced in Wehbe, absence of environmental harm or impacts, or compliance with other development standards or Council controls, is not sufficient justification to vary a different standard under cl 4.6.

42. Mr Whealy, for the applicant, argued that there are a number of distinctions between these applications and the Greenpark development. Firstly the Greenpark development was in a higher density zone where greater densities could potentially be achieved on the lot the subject of that application which he considered was the point that Commissioner Morris was making. He also noted that that development had a greater non-compliance with the required lot areas and there were various DCP non-compliances with the design of the dual occupancy dwellings including non-compliance with the front setback.

43. Mr Whealy submitted that there were only a limited form of dwellings permitted in the R2 zone and no higher density could be achieved than the developments proposed. He also submitted that it should be clear that the planned density was achieved with the form of development proposed given it is permissible in the zone.

44. He argued that the developments complied with the relevant DCP controls therefore they must be at an appropriate density for the zone and the lot sizes must also be appropriate.

45. Mr Whealy disputed that the applicant should be required to undertake research to demonstrate what the planned residential density was which would be a perverse outcome when the zoning is low density as is the form of development proposed. He argued the development was consistent with the zone objectives and standards as what was proposed delivered the planned density whereas if the application was refused it would fail to assist in delivering the planned density with the loss of one dwelling.

46. Mr Whealy submitted that there was no requirement for the applicant to demonstrate a better planning outcome and requiring strict numeric compliance with the standards would in fact result in a worse planning outcome as it would result in less housing in the zone for a 1% non-compliance where no amenity and streetscape impacts arise.

47. Mr Whealy in his written submissions also argued:

1. The fact that there are no remaining design issues nor any adverse amenity impacts suggest the site areas are adequate for the developments as now proposed.

2. The proposed developments meet the aims of the LEP which work together to encourage additional affordable housing types to meet population demand, subject to appropriate design.

3. The housing needs of the community provided for in the R2 low density zone can only be provided by way of a dwelling house, dual occupancy or boarding house.

4. In terms of the minimum development lot size control for dual occupancies, Lot A is only deficient by 0.4% and Lot B by 1%. In terms of the subdivision lot size control for Lot A, one lot complies and the other has a 0.8% shortfall. The proposed lots for Lot B have an approximate 1% shortfall.

5. If it is agreed that the dwellings have an appropriate design given the relevant controls that apply to such development in the zone, it must be that appropriate minimum lot sizes are provided and the planned density achieved.

6. The sites are in close proximity to extensive open space and parklands which lessens the need for strict compliance with lot size requirements. This coupled with the generous front setbacks ameliorates any impacts that could be said to arise from the slight lot size discrepancy.

7. The developments sit comfortably in their context and are well below the height limit and lower than the adjacent approved dwelling at 8 Tempe Street.

8. In the absence of any adverse impacts, compliance is unreasonable or unnecessary and no purpose would be served by requiring it. In contrast, housing would be lost to one potential family all because of a maximum 1% numerical non-compliance.

9. The objectives of both development standards are met by the provision of appropriate housing density consistent with that anticipated for the zone.

10. The sites are somewhat unique in that the variations sought are so minor as to be imperceptible to the human eye.

11. For all of these reasons, the public interest is served by allowing the variations to the standards sought and granting consent to the applications.

Conclusion and findings

48. It is common ground that the design, siting, scale and bulk of the dual occupancy dwellings as detailed in the amended applications are acceptable.

49. The only matter that remains is whether it is appropriate to allow variation to the development standards for the site areas proposed for the dual occupancy developments pursuant to clause 4.1A of the LEP and whether the resultant allotments to be created as the result of the subdivision of the two lots into four lots, each containing a dual occupancy dwelling, should be allowed.

50. The applicant relies on written requests prepared in accordance with the provisions of clause 4.6(3) of the LEP. Upholding those requests is a precondition to a consent authority, and therefore the Court, exercising the power to grant consent to the development. If I am not satisfied that the provisions of the clause are met, consent cannot be granted.

51. I am first required by cl 4.6 to consider the adequacy of the cl 4.6 written requests submitted with the applications to vary standards for both the development of the dual occupancies and the subdivision to accommodate each dual occupancy dwelling on a separate lot.

52. To a large extent the considerations are the same as the deficit in the existing site areas results in a similar relative deficit in the proposed lot sizes arising from the subdivision.

53. Having reviewed the clause 4.6 requests, I have formed the view that they are adequate in demonstrating that compliance with both the development lot area standard and the subdivision lot area standard is unnecessary and unreasonable in the circumstances of these applications. Further, that there are sufficient environmental planning grounds to justify contravening the development standards.

54. In this regard, I agree with the arguments in the requests that such a small deficiency in the existing or proposed lots would be imperceptible and would not result in development which did not meet the objectives of the relevant standards or zone. The developments proposed do not appear dissimilar to other low density development in the R2 low density zone nor will they result in development which would not be in accordance with the planned low density of the zone. I am therefore satisfied that the proposed subdivision creates lots of an appropriate minimum size for the proposed dual occupancies, as required by the objectives for such subdivision in the LEP.

55. In particular, I am not persuaded that requiring an additional 1.44m² in the area of Lot A or 6m² for Lot B would make any material difference to achieving the planning outcome or density sought by the controls for these sites. Refusing development of one additional dwelling across both sites on the basis of these numeric shortfalls not being provided would in my view be unreasonable. Providing this additional metreage is unnecessary to achieve the objectives of the standard or of the zone. Approval of the developments can therefore be considered to be in the public interest given these objectives are met.

56. Whilst the lack of environmental impact is not a basis for justifying the variations, I do note that this outcome is agreed to be achieved. I have also formed the view that the lack of the additional areas required for compliance with both standards will have no material or perceptible impact on the form, quality or density of development that can reasonably be accommodated on the sites the subject of the applications.

57. Although not argued in either the cl 4.6 variation request or in submissions, I note that the developments are on adjoining lots which enables the shortfall to be absorbed across both sites. It also allows a design which can integrate the dwellings having regard to its neighbour.

58. Allowing the variations sought achieves a form and density of development contemplated by the zoning. To not allow the developments would not guarantee any better planning outcome for the sites and would result in the loss of a dwelling on the basis of an 8m² non-compliance.

59. I agree with the applicant that it is because of such potential outcomes, that cl 4.6 is available to consent authorities to apply flexibility in the application of development standards. It is the outcomes of allowing such variations relative to the objectives of the controls and zone that become the relevant consideration.

60. I do not believe that refusal of the developments is a reasonable outcome in the circumstances of this case. Unlike Greenpark, the sites are not within the R3 zone where higher densities could potentially be accommodated on the sites to meet the objectives of that zone. Whilst I do not know the circumstances of the Greenpark case, I do note reference to adverse design non-compliances with the DCP, which is not the case in this instance. The only non-compliances cause no adverse outcomes and arise as a consequence of the topography of the sites, not of the lot areas, being circumstances specific to these sites.

61. I also agree with Mr Whealy that the applicant should not be required to undertake research or provide evidence to demonstrate what the planned residential density is for the R2 low density residential zone. That would be a perverse outcome when the zoning is low density as is the form of permissible otherwise compliant development proposed. The planned residential density is, in my view, self-evident from the suite of controls and from the zoning and permissible uses, which restrict the form and density of development permitted on the sites.

62. In summary, requiring strict compliance with both the lot area for development and for the subdivided lots would be unreasonable in this instance and achieve no greater environmental planning outcomes than the developments proposed. Cl 4.6 is included within the LEP for the purpose of providing the flexibility to allow variations which are reasonable in the circumstances. This is such a circumstance where very minor departures to two related development standards are sought and where strict numeric compliance serves no material benefit and would arguably achieve a lesser planning outcome given the loss of a dwelling in the zone, and where the construction of four dwellings has no adverse consequences for the zone, the streetscape or the usual application of the standards.

63. Accordingly, as I find that it is appropriate to apply the discretion available under clause 4.6, the applications are approved.

Orders

64. The Orders of the Court are:

1. The appeal is upheld.

2. Development Application No’s 432/2016 and 433/2016 for the construction of attached dual occupancies and Torrens Title subdivision at No.’s 10 and 12 Tempe Street, Earlwood are approved subject to the conditions in Annexure A.

3. The exhibits, other than exhibits 2 and 3, are retained.

_____________________

Jenny Smithson

Commissioner of the Court

67557.17 Smithson (C) (67.5 KB, pdf)

67558.17 Smithson (C) (205 KB, pdf)

Decision last updated: 30 June 2017