Simon Tso v Holroyd City Council

[2008] NSWLEC 1367

Land and Environment Court

of New South Wales

CITATION:	Simon Tso v Holroyd City Council [2008] NSWLEC 1367
PARTIES:	Simon Tso v Holroyd City Council
FILE NUMBER(S):	10456 of 2008
CORAM:	Moore C - Taylor C
KEY ISSUES:	Development Application - Development Control Plan :- "Compelling" reasons to change Master Plan
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	19 August 2008
DATE OF JUDGMENT:	30 September 2008
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan, barrister INSTRUCTED BY Pikes Lawyers RESPONDENT Mr R Graham, solicitor HWL Ebsworths

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
TAYLOR C

30 September 2008

08/10456 Simon Tso v Holroyd City Council

JUDGMENT

1 COMMISSIONERS: Holroyd Gardens is a substantial new residential estate constructed on a former brickworks site in close proximity to Merrylands station. Holroyd Gardens is a joint-venture development between Holroyd Council and a private property developer. Holroyd Gardens has a range of housing mixes across the various elements of the estate. It contains a number of heritage items from the former brickworks’ operations but these are not relevant in the present proceedings.

2 The applicant has purchased 4 allotments that are located toward the western corner of the site. These allotments are each designated at the present time for single residential development in the Master Plan that has been adopted for the development. He now proposes to erect 18 apartments and consolidate the four allotments for this purpose.

3 The Council originally filed a Statement of Facts and Contentions that pressed a number of contentions concerning privacy, overshadowing, traffic and parking and that the proposal was of a generally unsatisfactory design. However, following discussions between the applicant and representatives of the Council that resulted in a variety of modifications to the proposal, the Council no longer presses objections to this proposal. However objections to the proposal remain pressed by the owner of an apartment block immediately to the south of these four allotments and by the purchasers of the allotment immediately to the north upon that they propose to erect a single residence.

4 Although these objectors raised a number of issues concerning privacy, shadowing, traffic and parking and the like, we are satisfied that the design proposed for the apartment building is acceptable when tested against all relevant Council controls and when considered pursuant to s 79C of the Environmental Planning and Assessment Act 1979. As a consequence, there is no basis founded on the design of the building why consent should not be permitted for it.

5 However, each of the objectors also raised concern that the proposed consolidation of the four allotments was contrary to the Master Plan that applies to the former brickworks. They said that they had purchased the properties in reliance on the provisions of the Master Plan and representations made to them about the use of these allotments. Such complaints as are made by each of them concerning any alleged representations may potentially raise issues well beyond the jurisdiction of this Court but are not properly matters upon which we should comment.

6 The fact that the proposal amounts to a variation of the Master Plan is, however, a matter that we are obliged to consider as a consequence of the provisions of Development Control Plan 30, Guidelines for the Development of Holroyd Gardens, the site-specific DCP adopted by the Council for the purposes of the development of the brickworks site.

7 Part 5 of the DCP deals with Built Form. It contains within it a number of sub-headings - one of which, at 5.2, is Housing. The first of the elements under this heading is not relevant to the present proceedings but the second element is. It reads:

Based on the current indicative Master Plan, this DCP envisages that the site will have a maximum density of 260 –280 dwellings, comprised of a mix of detached, semi-detached and medium density multi unit housing. Council may at its discretion consider and approve a variation to the Master Plan where compelling economic, environmental or social grounds are present, and where the overarching objectives and principles of this DCP can be achieved.

8 In the course of the hearing, we requested that the two experts giving evidence for the parties, Mr Kennan, town planner for the Council, and Mr Dickson, urban designer for the applicant, consider what matters we should regard as answering a requirement, if it were necessary to do so, that there be compelling economic, environmental or social grounds to vary the Master Plan.

9 They provided a supplementary joint report dealing with this matter and also dealing with the question of compliance with the zone objectives and the overarching objectives and principles of the DCP. We are satisfied that their analysis of the issues relating to the zone objectives and general objectives of the DCP is correct and no issue arises, from this, requiring further consideration.

10 We note that the Council has approved previous variations to the Master Plan. With respect to this application, the Council had refused such a variation when accompanieded by a detailed submission in support of it.

11 As to the emphasis we should give to the DCP, Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at para 75 on pp 386 and 387, three propositions emerge. First, although we have a wide-ranging discretion, the discretion is not at large and is not unfettered. Second, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, our decision-making process – particularly as there are no issues relating to compliance with the Local Environmental Plan. Third, a provision of the DCP directly pertinent to the application is entitled to be given significant weight in our decision making process, but it is not in itself determinative.

12 Further, if a proposal does not meet the DCP’s requirements, we may still grant consent, in appropriate cases, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Act.

13 In considering the question of compelling economic, environmental or social grounds, Mr Kennan and Mr Dickson provided a list of points against each of these three headings. These are set out in full below:

B. Compelling Economic, Environmental and Social Grounds

1. Economic

• The application increases housing choice, through the provision of 18 one and two bedroom apartments, with a total of two adaptable units. One and two bedroom units are highly sought after throughout Western Sydney
• The application provides a mixture of housing types, i.e. one and two bedroom units, for families in lieu of large single family dwellings.

2. Environmental

• There are no discernable impacts upon the environment occurring as a result of the proposed development. There are no impacts associated with view loss, overshadowing, privacy or noise.
• The proposal will create a unique and vibrant lace to live, characterised by high quality architectural design, combined with attractive landscape treatment.
• The proposed development has adopted a variety of architectural and urban design mechanisms to provide visual interest along Dressler Court, such as articulation to building facade, building finishes and materials.
• The proposed deep-root planting zone around the periphery of the site will reduce the apparent bulk and scale of the proposal as well as provide a 'green' visual buffer between the surrounding dwellings and the proposed development.
• In accordance with the DCP, the proposal is designed and oriented to minimise overshadow and maximise natural sunlight access to adjoining and adjacent properties.
• The setback of dwellings from the street frontage is appropriate to the efficient use of the site, the comfort of residents and the aesthetic value of the streetscape. This is achieved by optimising the landscaping within the front setback area.
• The built form positively contributes and is sympathetic to the heritage value of the area. This is achieved by minimising the building height, and ensuring appropriate front and rear setbacks.

3. Social

• The application has two (2) adaptable units that would suit mobility impaired people.
• The smaller units, i.e. 1 bed units allow buyers to enter the housing market and other groups including seniors to down size.
• The proposal is short walk to Merrylands Station and close to the employment areas.
• The proposal is consistent with the Draft SEPP66 as the site is close to public transport. The Metropolitan Strategy also identifies a need to locate housing in increased densities closer to public transport nodes.
• The proposal has been designed to improve casual surveillance of public and communal areas, maximise activity at the Dressier Court frontage of the site, provide clear and safe access points, provide a quality presentation to the public space, provide additional lighting and a clear definition between public and private spaces.
• An attractive building form combined with an increase variety in unit sizes (when compared with single dwellings) will strengthen the regeneration of the former Goodlet and Smith Brickworks site. The proposal will have sufficient parking within the basement levels (reducing the need for on street parking).

14 It seems to us that, in this context, it is necessary for us to analyse, in using the relevant provision of the DCP as the focal or starting point for our consideration, what the word compelling means in this context. Ms Duggan, counsel for the applicant, pressed that we should treat the word in its adjectival application rather than construing it as a present participle. The Macquarie dictionary, gives the adjectival definition as demanding attention or interest but this is expressly described as being in the context of assessing the attributes of a person, writer, actor etc. If used as a present participle, the alternative meanings are as follows:

1. To force or drive, especially to a course of action. 2. To secure or bring about by force. 3. To force or submit; subdue. 4. To overpower. 5. To drive together; unite by force; herd.

15 We are satisfied that the appropriate meaning to adopt is that that treats compelling as a participle – as the words to which it applies are not the attributes of a human being, which is the clear meaning required if the adjectival form were to be preferred.

16 We are also satisfied that the use of the word compelling, in this context, means that the relevant circumstances that would provide any one of economic or environmental or social grounds to force or drive a variation to the Master Plan should be circumstances going beyond some broad level of generality. The term necessarily imports an element of imperative or being necessary. It certainly is a higher threshold than mere desirability, in our view.

17 We return, therefore, to consider the various grounds advanced in the joint expert report on this point.

18 The two points advanced under the heading “Economic” encompass a number of propositions. In our view, the only one of them capable of potentially addressing the concept of compelling is the sentence “One and two-bedroom units are highly sought-after throughout Western Sydney.” In support of this proposition, documents were tendered seeking to establish that there continues to be significant demand for such dwellings. Taking this evidence at the highest, we do not consider that a broad demand for such housing “throughout Western Sydney” provides any compelling basis as to why these 18 units are a necessary or essential requirement for the satisfaction of such demand.

19 As a consequence, we do not consider that there is any compelling economic ground upon that to permit variation to the Master Plan.

20 All of the elements set out under the heading “Environmental” in the joint report are equally capable of being achieved, to the extent that they are valid (and assuming that they are valid) by single dwellings erected on each of these four allotments. Indeed, we consider that the first, fourth, fifth and sixth elements set out under this heading are, in fact, matters that are neutral in value judgment. At best for the applicant, they are ones that deal with how the proposal neutralises what might otherwise be regarded as adverse impacts of the proposal.

21 As a consequence, we do not consider that there is any compelling environmental ground upon that to permit variation to the Master Plan.

22 With respect to the matters listed under "Social" as possible grounds that might compel a variation, we note that, although there are a number of positive elements such as the provision of two adaptable units, there is nothing in this list that demonstrates a special basis that would warrant the setting aside of the present provisions of the Master Plan.

23 There is no suggestion that would not be possible for the four individual houses on separate allotments, if such were to be constructed, could not be constructed adaptably. The second point, relating to smaller units, is not supported by any evidence that this development constitutes affordable housing. We do not consider that providing downsizing opportunities provides any compelling basis for such a variation.

24 The walking distance to Merrylands station and proximity to employment areas is equally relevant to separate dwellings as it is to apartments.

25 It is true that the Master Plan for the overall design for the broader site – that being the whole of the former brickworks – is addressing increasing densities and the like in proximity to public transport and employment areas. There is nothing, in this context, that causes us to conclude that the 14 additional dwellings that would arise from this proposal are so needed in this location that we should conclude that there is some compelling basis for their provision.

26 We accept the fifth point in this list as accurately reflecting the design proposed. There is nothing, however, within it, that would not be capable of being provided either completely (or in very significant measure) by four individual dwellings constructed on separate allotments.

27 The final point under this heading contains two concepts. The first, relating to a strengthening of the regeneration of the brickworks site, in our view, is not supported by the impression obtained by viewing the surrounding development either in the immediate proximity of the site or on the drive from the entrance to the former brickworks. One further comparatively modest sized apartment block, in substitution for four further appropriately and interestingly designed single dwellings does not, in our view, add anything positive to the overall scheme of the site in any fashion that could be regarded as compelling.

28 As to the sufficiency of parking, the proposal complies with the Council's numerical controls. Such compliance is to be expected as the norm rather than regarded as a compelling basis for a variation to the Master Plan.

29 Although we accept that the Master Plan does not, independently, have special significance, we do consider that as it has been imported as an element of the DCP by virtue of the provisions of 5.2, this requires us to apply the processes we have above as a consequence of the decision of the Court of Appeal in Zhang.

30 Having reached the conclusion that there are no compelling reasons why the Master Plan should be varied, we turn to consider whether we should set aside this provision of the DCP on the basis of a broader s 79C assessment of the proposal.

31 In this context, we agree that the built form as is now proposed is acceptably designed. However, the built form now proposed, if constructed, significantly differs from that that would result if four separate dwellings were constructed, one on each of the allotments. The outlook, from the perspective of each of the objectors, would be changed significantly as would be the proposed streetscape under the present Master Plan provisions. We are satisfied that these changes would be negative ones because of the bulk and height of the building proposed in lieu of the separate dwellings that could be expected to be constructed on each allotment.

32 The volume of traffic using Dressler Court in the vicinity would increase. The (limited) view corridors from Dressler Court through the spaces between separate dwellings to the parklands to the west would disappear.

33 Whilst all of these changes would be acceptable if the allotments had been designated for apartments in the Master Plan, they are nonetheless negative ones compared to what the Master Plan in fact envisages. They would impact negatively on the objectors.

34 As a consequence, we do not consider that mere acceptability in a s 79C assessment, on the assumption that the Master Plan permitted the proposal, is any basis to set aside the views we have formed concerning fundamental non-compliance with a critical provision of the DCP.

35 The orders of the Court are, therefore, that:

1. The appeal is dismissed;
2. Development Application 46/2008 for the erection of 18 apartments at 17 – 23 Dressler Court, Holroyd Gardens is determined by the refusal of development consent; and
3. The exhibits are returned.

Commissioner of the Court

Commissioner of the Court