Ribarevski v Botany Bay City Council

[2015] NSWLEC 1187

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ribarevski & anor v Botany Bay City Council [2015] NSWLEC 1187
Hearing dates:	Conciliation conferences on 7 and 18 May; consent orders hearing on 25 May
Date of orders:	28 May 2015
Decision date:	28 May 2015
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	See (15) below
Catchwords:	DEVELOPMENT APPLICATION: correct characterisation of development; if Council correct in its characterisation, objection to compliance with FSR development standard; Council correct in characterisation; objection to compliance sustained; consent orders
Legislation Cited:	Botany Bay Local Environment Plan 2012 Land and Environment Court Act 1979
Category:	Procedural and other rulings
Parties:	L and M Ribarevski (Applicants) Botany Bay City Council (Respondent)
Representation:	Counsel: Mr G Christmas, solicitor (Applicant) Mr J Cole, solicitor (Respondent)   Solicitors: Apex Law (Applicant) HWL Ebsworth (Respondent)
File Number(s):	10173 of 2015

Judgment

1. SENIOR COMMISSIONER: Botany is a suburb that has been undergoing, for a number of years, a transition from a mixed residential and industrial suburb where the residences were generally freestanding ones to a renewed development pattern. This transition has been, in part, by urban renewal with redevelopment of large industrial sites for residential purposes with such redevelopment involving increases in density over nearby residential areas. The residential areas themselves have also commenced to be redeveloped by modest increases in density on existing allotments.

2. Such a position has and continues to occur in William at Botany, the street where the site that is the subject of these proceedings is located. On the western side of the street, opposite the property owned by Mr and Mrs Ribarevski, there has been in the comparatively recent past, a major brownfields housing redevelopment of what had been a large industrial site. This redevelopment is generally low scale - comprising one or two storey residences but has, as observed during the course of the site inspection, achieved increases in density.

3. Mr and Mrs Ribarevski lodged a development application (Development Application 14/148) with Botany Bay City Council (the Council) on 12 July 2014 seeking consent to demolish their existing freestanding dwelling and to erect a pair of attached dwellings in place of the existing structure. The Council had received, it is to be noted, no objections to the proposal in response to its public notification. The application was refused by the Council on 9 December 2014 and a Class I appeal lodged with the Court on 2 March 2015 against this refusal.

4. As is now common in such matters, the application proceeded to be considered, initially, through the mechanism of a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979.

5. As is required in merit proceedings, the Council prepared a Statement of Facts and Contentions, setting out, in the contentions, those matters that caused the Council to continue to maintain that the proposal should be refused.

6. The conciliation conference commenced with an inspection of the site and its relationship with its immediate neighbours and an examination of the streetscape, on both sides of William Street, in the vicinity of the site. During the course of the subsequent discussions on site, it became obvious that the various merit issues that were pressed by the Council were capable of being resolved by comparatively modest changes to the design of the proposed dwellings.

7. In summary, internal layout changes were needed to address the Council's concern about the extent of non-compliance with the development standard for floor space ratio which the Council contended was applicable by application of cl 4.4 of the Botany Bay Local Environment Plan 2012 (the LEP) and the Council's desire for changes to the external presentation to William Street to effect greater visual differentiation between the two dwellings. The discussions during the conciliation phase resolved these issues with the applicants agreeing, through their solicitor, Mr Christmas, to prepare revised plans to address those matters in a fashion satisfactory to the Council.

8. However, there remained a dispute between Mr Christmas and Mr Cole, solicitor for the Council, as to whether or not the floor space ratio development standard set out in the LEP applied as, if it did, an objection to compliance with the development standard was required to be made through the mechanism provided in cl 4.6 of the LEP.

9. This issue arose for consideration as a consequence of the necessity to determine how the proposed development should be characterised within the various defined terms set out in the LEP. This is appropriately articulated by the first three particulars to the first of the contentions in the Council's Statement of Facts and Contentions. The first contention read as follows:

1. The development is an overdevelopment of the site.

10. The first three particulars to the contention, relevant for my approving the proposed consent orders, were in the following terms:

(a) The proposed development exceeds the FSR exception control clause 4.4A(3)(d) which applies to the site located within ‘Area 3’ as identified on the Floor Space Ratio Map of the Botany Bay Local Environmental Plan 2013 (Botany Bay LEP 2013).

(b) The proposed built form subject of the application is characterised as a ‘semi-detached dwelling’ which is defined in the Botany LEP 2013 as a ‘dwelling that is on its own lot of land and is attached to only one other dwelling’. The ‘semi-detached dwelling’ development is identified as ‘residential accommodation’ as defined under Botany Bay LEP 2013. Clause 4.4A(3)(d) identifies an FSR control of 0.5:1 applying to ‘all other residential accommodation’ not specifically identified in other subclauses of clause 4.4A(3). Subclause 4.4A(3) does not specify a specific FSR exception for semi-detached dwellings outside the ‘residential accommodation’ definition in clause 4.4A(3)(d). The FSR standard of 0.5:1 in clause 4.4A(3)(d) is the relevant control and is contravened by the application which proposed a built form with an FSR of 0.79:1 on the proposed Lot 1 and 0.77:1 on Lot 2 after subdivision.

(c)         The proposed development does not fall within the clause 4.4A(3)(a) exception to FSR control as it is not characterised as a ‘dwelling house’ as defined in the Botany Bay LEP 2013.

11. Resolution of this contention was agreed to be the fundamental impediment to the Council entering into a conciliation agreement outcome for the proceedings. However, Mr Christmas and Mr Cole agreed that the appropriate course to be followed to resolve the matter was for the applicant to provide an objection to compliance with the floor space ratio development standard pursuant to cl 4.6 of the LEP and to ask me, in the context of proposed consent orders reflecting the revised settled design and the cl 4.6 objection, whether or not the Council's contention made such an objection necessary.

12. I have now been provided with consent orders executed by Mr Christmas and Mr Cole on behalf of their clients; conditions of consent flowing from those consent orders together with the revised plans that are enumerated in those conditions of consent; and an objection pursuant to cl 4.6 of the LEP to compliance with the floor space ratio control in cl 4.4 of the LEP.

13. It is unnecessary for me to set out, in detail, the definitional issues requiring consideration as they are adequately encapsulated by the Council's contention that I have earlier reproduced. Equally, as I consider that the Council's position is correct, it is also unnecessary for me to undertake any further detailed analysis as the point is a narrow one and the relevant and necessary reasoning is set out in the contention.

14. As a consequence, I am satisfied that it is appropriate to make the consent orders sought by the parties including the order pursuant to cl 4.6 of the LEP that is necessary to sustain the objection necessary to permit non-compliance with the floor space ratio development standard contained in the LEP.

Orders

15. The orders of the Court, by consent, therefore are:

1. Leave is granted to the Applicant to file amended plans prepared by Fotoulla Lazaridis Architect being DA01, DA02, DA03, DA04, DA05, DA06, DA07, DA08, DA11, DA12, DA24, DA27, DA30, W01 and W02 inclusive and all dated 22.05.15;

2. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs agreed at $700.00 within 28 days of the date of these orders;

3. The Applicant’s written request to the carrying out of the development in contravention of the development standard in clause 4.4A(3)(d) of the Botany Bay Local Environmental Plan 2013 is upheld;

4. The appeal is upheld; and

5. Development consent is granted to DA14/148 to demolish the existing dwelling; the subdivision of the land (Lot 291 in DP 1159760) into two lots; and the construction of a dwelling on each lot at 16 William Street, Botany subject to the conditions at Annexure “A”.

Tim Moore

Senior Commissioner

Decision last updated: 28 May 2015