St George Community Housing Limited v Sutherland Shire Council

[2015] NSWLEC 1514

Land and Environment Court

New South Wales

Medium Neutral Citation:	St George Community Housing Limited v Sutherland Shire Council [2015] NSWLEC 1514
Hearing dates:	8 December, 2015
Date of orders:	10 December 2015
Decision date:	10 December 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. By consent, the appeal is upheld. 2. Development Application No. 15/0052 for two townhouses and one villa at 148 Kiora Road, Miranda, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibit 2, are returned.
Catchwords:	DEVELOPMENT APPLICATION: townhouse and villa development; affordable rental housing; consent orders.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Wehbe v Pittwater Council (2007) 156 LGERA 446
Category:	Principal judgment
Parties:	St George Community Housing Limited (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: Mr A. Seton solicitor (Applicant) Ms J. Amy solicitor (Respondent) Solicitors: Marsdens Law Group (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	10738 of 2015

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 15/0052 for the demolition of existing structures and construction of two townhouses and one villa (the proposal) at 148 Kiora Road, Miranda (the site) by Sutherland Shire Council (the Council). Prior to the hearing, the parties agreed to enter into consent orders.

2. In considering the parties’ agreement to enter into consent orders, the Court’s Practice Note – Class 1 Development Appeals (paragraphs 35-6) provides:

Application for final orders by consent of parties

35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval.

36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.

3. Resident objectors were invited by letter, dated 24 November 2015 (exhibit 1), to attend the hearing and give evidence, however, no objectors attended. The letter advised the resident objectors that the parties intended to enter into consent orders and provided a copy of the proposed conditions of consent. The Council submits that the objections raised by the resident objectors regarding the proposal have been addressed by conditions of consent.

Issues

4. The Council’s contentions in the matter can be summarised as:

• The site width is less than the minimum lot width of 25 metres;

• The inadequacy of the width of the site for the purposes of a townhouse and villa development results in breaches of the side setback controls;

• The proposal does not include any adaptable housing; and

• The shadow diagrams do not include the existing shade cast by the buildings on the adjacent site to the north.

5. The Council submits that the contentions have been satisfactorily resolved by further consideration of the proposal and by the imposition of conditions of consent.

The site and its context

6. The site is on the eastern side of Kiora Road, on the block bounded to the north by Attunga Road and to the south by Forest Road. The site has a frontage to Kiora Road of 15.24m and a site area of 695.6sqm.

7. The site contains a single family dwelling.

Planning framework

8. The application is made pursuant to the State Environment Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) Part 2, Division 1, in-fill affordable housing. SEPP ARH includes a requirement that the proposal must be used for affordable housing for ten years, at cl 17.

9. The site is located within Zone 4 - Local Housing, pursuant to Sutherland Shire Local Environment Plan 2006 (LEP 2006) and the proposal is permissible with consent. The objectives of the Local Housing zone are as follows:

(a) to allow low density residential buildings that complement the predominantly urban landscape setting of the zone, characterised by dwelling houses on single lots of land,

(b) to ensure the character of the zone, as one comprised predominantly of dwelling houses, is not diminished by the cumulative impacts of development,

(c) to allow development that is of a scale and nature that preserves the streetscape and neighbourhood character of the zone,

(d) to allow residential buildings that provide a variety of housing choices for the needs of the local community,

(e) to allow non-residential buildings that provide necessary services to the local community without adversely affecting the residential amenity of the zone.

10. The minimum width of a lot for villa houses and townhouses, at sub-cl 41(4) of LEP 2006 is 25m. The relevant objectives of cll 39 – 42 of LEP 2006, at cl 37, are as follows:

(d) to ensure that the area and width of lots are sufficient for their intended purpose and provide sufficient space for negative externalities to be resolved on site,

(e) to ensure that a sufficient area of land is available, in connection with development, for landscaping, drainage and parking so as to achieve a satisfactory residential amenity,

(f) to ensure new development complements the established scale and character of the streetscape where the development is carried out, and does not dominate the natural qualities of its setting.

11. The minimum side setback for built development within the Local Housing zone is 0.9m, the minimum rear setback is 6m and the minimum side setback for the second storey is 1.5m, under Sutherland Shire Council Development Control Plan 2006 (DCP 2006) at 3.b.2.

12. Two storey development is only permitted on the front of an allotment and may extend to a maximum of 50% of the depth of the site measured from the property boundary if there are no adverse impacts on adjoining land in terms of privacy, solar access to recreation areas or facilities or primary views, at 3.b.3 of DCP 2006.

13. The minimum side and rear boundary setbacks required for villa housing and townhouses is 3m side setback and 6m rear setback at 3.b.6 of DCP 2006.

14. The objective for villas and townhouses at 4.a.1 of DCP 2006 is to ensure that the proportion of the building footprint to the site area preserves a perception of openness consistent with the established character of the area or contributes to the desired future character of the area.

15. The site cover is not to exceed 35% of the site, at 4.b.3 of DCP 2006.

Non-compliance with the minimum lot width development standard

16. The application includes a State Environmental Planning Policy No 1—Development Standards (SEPP 1) objection to the minimum lot width development standard (exhibit A, tab 3, pp 13-14). As found in the judgment of Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42], the most commonly invoked way to establish that compliance with the development standard is unreasonable or unnecessary is because the objectives of the development standard are achieved, notwithstanding non-compliance with the standard, on the basis that development standards are not ends in themselves but means of achieving ends, at [43]. A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary, at [45]. A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable, at [46]. A fourth way is to establish that 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, at [47].

17. The Court must be satisfied of the following matters before it can uphold a SEPP 1 objection:

• The objection is well founded, at clause 7 of SEPP 1;

• That the granting consent to the development application is consistent with the aims and objectives of the SEPP 1 policy, as set out in clause 3, to provide flexibility in the application of planning controls, operating by virtue of development standards, in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act; and

• That a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection.

18. The relevant objectives of the minimum lot width development standard in LEP 2006 are to ensure that the proposal includes adequate outdoor recreation, landscaped and service space, including vehicular access; to ensure that the proposal includes adequate building area and boundary setbacks and provides adequate amenity to the future occupants; and to ensure that the proposal is consistent with the existing character of the streetscape.

19. The SEPP 1 objection justifies the exceedance of the minimum lot width development standard in LEP 2006 as being consistent with the objectives of the minimum lot width development standard, notwithstanding the numerical non-compliance, as follows:

• There is sufficient land area available for landscaping, drainage and parking so as to achieve a satisfactory residential amenity;

• The proposal complements the established scale and character of the streetscape and does not dominate the natural qualities of its setting;

• The proposal provides affordable housing in the local area which constitutes a public benefit.

20. I am satisfied that, when tested against the relevant objectives of LEP 2006, the proposal achieves the outcomes required by the objectives and therefore strict compliance with the minimum lot width development standard in LEP 2006 has been demonstrated by the proposal as being unnecessary.

Suitability of the proposal for the site

21. The Council submits that the proposal is acceptable in terms of its suitability for the site for the following reasons:

• The proposal presents as a typical pair of townhouses when viewed from the street and the width of the allotment is sufficient to accommodate this scale of development;

• The appearance and scale of the pair of townhouses is consistent with the established character of the local area;

• The proposal complies with the landscaping requirements and provides adequate residential amenity;

• The side setbacks of the proposal are acceptable as each dwelling has a relatively small footprint and the depth and alignment of the dwellings are consistent with neighbouring development;

• The provision of two single garages complies with the parking requirements of SEPP ARH for the proposal;

• The sill heights of the side windows of bedroom 2 on the upper level of each townhouse is to be raised to 1.2m from the finished floor level (condition 2(i)) and the scale and built form of the proposal preserves the visual and acoustic privacy of adjoining properties;

• The fall of the site towards the rear of the allotment and particularly the steep fall at the front of the site and across the verge make it impossible to provide an adaptable dwelling on this site. The applicant, a registered and reputable affordable community housing provider, has provided adaptable dwellings elsewhere in the local area;

• The proposal provides a social and community benefit.

22. I accept the Council’s submission regarding the suitability of the proposal for the site.

Shadow diagrams

23. The Council contends that the shadow diagrams excluded the existing shadow cast by the built structures on the adjoining property to the north. The Council submits that their concern regarding any overshadowing of the private open space and northern windows of the rear villa is cured by condition 2(ii) requiring the living area to be relocated to the north-eastern corner of the villa and the applicant accepts the imposition of this condition. I accept the parties’ agreement.

Conclusion

24. In considering the plans and documents and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the resident objectors in their written objections to the proposal, I am satisfied that it is lawful and appropriate to grant the consent, having regard to the whole of the circumstances.

Orders

25. The orders of the Court are:

1. By consent, the appeal is upheld.

2. Development Application No. 15/0052 for two townhouses and one villa at 148 Kiora Road, Miranda, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than exhibit 2, are returned.

­­­­­­____________

Susan O’Neill

Commissioner of the Court

10738 of 2015 O'Neill (C) (224 KB, pdf)

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Decision last updated: 10 December 2015