Sun Life Dior Pty Ltd ATF Sun Life Dior Unit Trust v Fairfield Council

[2020] NSWLEC 1087

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Sun Life Dior Pty Ltd ATF Sun Life Dior Unit Trust v Fairfield Council [2020] NSWLEC 1087
Hearing dates:	31 October 2019; 1 November 2019; 13 November 2019; agreed conditions of consent filed with the Court on 4 December 2019
Date of orders:	28 February 2020
Decision date:	28 February 2020
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders are: (1)   The appeal is upheld. (2)   Development consent is granted to Development Application No 97.1/2018 (as amended) for demolition and construction of a six-storey residential flat building containing two basement levels of parking at 7-11 Weston Street, Fairfield subject to the conditions set out in Annexure A. (3)   The exhibits are returned except for Exhibits 2, B and O.
Catchwords:	DEVELOPMENT APPLICATION – demolition of existing structures and construction of a six-storey residential flat building containing two basement levels of parking – in proximity to the de Freitas Wetland –floor space ratio (FSR) development standard – construction and interpretation of cl 4.4A of Fairfield Local Environmental Plan 2013 – determine which FSR applies – appropriateness of built form – bulk and scale – public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979 Fairfield Local Environmental Plan 2013
Cases Cited:	Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Texts Cited:	Apartment Design Guide Fairfield Citywide Development Control Plan 2013 Macquarie Dictionary (Seventh edition)
Category:	Principal judgment
Parties:	Sun Life Dior Pty Ltd ATF Sun Life Dior Unit Trust (Applicant) Fairfield Council (Respondent)
Representation:	Counsel: T Robertson SC (Applicant) A Seton (Solicitor) (Respondent)   Solicitors: Conomos Legal (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2018/325339
Publication restriction:	No

Judgment

1. COMMISSIONER: Sun Life Dior Pty Ltd (the applicant) has appealed against the Council’s deemed refusal of Development Application No 97.1/2018 (as amended) pursuant to s 8.11 of the Environmental Planning and Assessment Act1979 (EPA Act).

2. The DA seeks consent for the demolition of existing structures and construction of a six-storey residential flat building containing two basement levels of parking (the DA) on the land at 7-11 Weston Street, Fairfield (the site).

3. At the conclusion of the evidence in the proceedings, the contentions that remain unresolved are Contention 4 – Floor space ratio (FSR), Contention 8 – Bulk, scale and character and Contention 13 – Public interest.

4. There are two elements to the FSR contention:

1. The proper construction of cl 4.4A of Fairfield Local Environmental Plan 2013 (LEP 2013) for the purpose of determining the applicable FSR;

2. If the applicable FSR for the site is 1.25:1, then the question arises as to whether the request made by the applicant under cl 4.6 of LEP 2013 for contravening that development standard by 438m2 of gross floor area should be allowed.

5. The essential facts are as follows.

Facts

6. The site is on the southern side toward the end of the cul-de-sac and is comprised of three separate allotments under one ownership. The relevant Lots are 10, 11 and 12 in Deposited Plan 949.

7. The site is zoned R4 High Density Residential under LEP 2013. The area is characterised by a mix of commercial and residential uses which range from high density (3-4 storey residential flat buildings) to low density single storey detached dwellings.

8. The eastern side boundary of the site adjoins 13 Weston Street, which is Council owned land in the E2 Environment Conservation Zone. This land is occupied by a single-storey dwelling used as a community facility.

9. The rear boundary of the site is irregular because it follows the shape of the de Freitas Wetland (the Wetland). The topography maintains a downward slope from the street frontage down to the Wetland by approximately 4.97m (being an average 9.15% slope across the site).

10. The site has a frontage of 41.45m2 to Weston Street and the depth of the site from the frontage varies between 38m and 52.73m depending upon the point of measurement.

11. The land area of the site is 1752m2.

12. The site contains three detached, single-storey dwellings and outbuildings – with trees and landscaped terraces forming the interface with the Wetland. Most of the vegetation is either exotic or weeds and the application proposes its removal to allow for the revegetation of the riparian land with planting of appropriate species. The revegetation of this area of the site and the Council land (as identified on the Demolition Plan DA 28) was the subject of joint evidence from experienced ecologists and by the end of the hearing, the detail was essentially agreed in a series of conditions.

13. The other environmental constraints for the site are detailed in the Amended Statement of Agreed Facts and Contentions filed by the Council on 16 October 2019.

FSR contention

14. The parties agree that cl 4.4A operates as an exception to the maximum FSR for a building on land shown on the FSR Map referred to in cl 4.4. The provision provides as follows:

(1) This clause applies to land in Zone R4 High Density Residential (excluding any land in Cabramatta, Canley Vale and Fairfield Heights).

(2) Despite clause 4.4, the maximum floor space ratio for a building on land to which this clause applies is as follows—

(a) if the building has a street frontage of less than 30 metres—0.8:1,

(b) if the building has a street frontage of at least 30 metres, but less than 45 metres—

(i) 1.25:1 if the site has a depth of less than 40 metres, or

(ii) 1.5:1 if the site has a depth of at least 40 metres,

(c) if the building has a street frontage of at least 45 metres—

(i) 1.5:1 if the site has a depth of less than 40 metres, or

(ii) 2:1 if the site has a depth of at least 40 metres.

15. There is no contest that the proposed building has a street frontage of 41.45m and that cl 4.4A(2)(b) of LEP 2013 applies.

16. The Council argues that because one of the lots has a depth of less than 40m when measured from the street frontage, the site has a depth of less than 40m and the FSR is 1:25:1 as prescribed by subcl 4.4A(2)(b)(i).

17. The applicant contends that the depth from the street frontage to the back of the site cannot be measured from a single point unless the shape of the site is a parallelogram – where the front of the boundary line is parallel with the rear boundary line. Only then will the measurement from front to back from any point to any point perpendicular to that point will be the depth of the site. Since this site does not have parallel front and rear boundaries, depth cannot be measured by reference from a single point on the front boundary. Instead, the applicant contends that the depth of the site will be “a sufficient aggregation of points along the frontage from which the distance to the rear boundary can be measured to provide a reliable account of the depth of the site”. While it accepts that in some cases lines may be drawn at 5m intervals and divided by the number of measurements taken to determine the depth of the site, sometimes it will be unnecessary to take actual measurement of depth, so long as it is obvious that the site as a whole has a depth of at least 40m.

18. The applicant relies on the plan in Exhibit G reproduced below to demonstrate that the greater part of this site is obviously more than 40m in depth even if a much smaller part of the site is less than 40m.

19. The applicant submits that the Council’s argument founders once it is clear that depth is to be measured from the street frontage. In short, it submits that the clause cannot mean that every line drawn perpendicular to a point at the frontage to the rear boundary must be longer than 40m. Such a measurement is the depth of that point on the street frontage, not the depth of the site measured from the street frontage which is the inquiry invited by the clause. Similarly, the clause does not authorise the measurement of the shortest distance between the street frontage and the rear boundary to represent the depth of the site. Nor does it warrant the selection of one lot over another in answering the question – by reference to the shortest distance between its frontage and its rear, and then ignoring the rest of the site. These approaches, as advocated by the Council, are said to provide false answers to the depth of the question.

20. The only answer to the question raised by cl 4.4A, according to the applicant, is that the depth of the site is at least 40m. An answer, which is supported by a consideration of the text of the clause in its context and having regard to the purpose of the standard. With that approach to statutory construction in mind, the applicant submits the words “at least” (emphasis added) in cl 4.4A(2)(b)(ii) do not govern the measurement of the depth, but its outcome: if the depth, properly measured, is equal to or greater than 40m, then the 1.5:1 FSR applies. Whereas, an adoption of the Council’s construction results in an underutilization of the site, providing sufficient site area for the building to comply with other standards and controls in breach of the objectives of the R4 High Density Residential zone which seeks to provide for the housing needs of the community within a high density residential environment and to provide a variety of housing types within that environment.

Finding – FSR

21. After consideration of the text of cl 4.4A, having regard to its context and purpose, I accept the interpretation advanced by the applicant. The site falls within the exception in cl 4.4A(2)(b)(ii) therefore the applicable FSR control is 1.5:1, and the building is compliant.

22. The underlying purpose of the FSR standard in cl 4.4A is to ensure that development provides suitable bulk and scale commensurate with the area of the site. The planners agree that as the widths and depths of a site increase, so too does the maximum FSR that may be achieved (Exhibit 36 at par 36).

23. The issue then is whether the site of the proposed building has a depth of less than 40m or has a depth of at least 40m. The starting point for determining the depth is the site, not a particular lot or component of it. The clause contemplates a site with a frontage and one rear boundary, albeit in this case the rear boundary of the site is irregular.

24. The word “depth” is not defined, therefore the Macquarie Dictionary meaning assists, namely: “the distance backwards, front to back” (Macquarie Dictionary meaning No. 1). Because the site is not perpendicular, as is apparent from Exhibit G, common sense dictates that one must consider the overall depth of the site in order to determine the predominate depth. This is not an averaging of the distance over the rear boundary because the words “at least” (emphasis added) in cl 4.4A do not govern the measurement of the depth, but its outcome: if the depth, properly measured, is equal to or greater than 40m, then the 1.5 FSR applies.

25. The phrase “at least” (emphasis added) used in subcl 4.4A(2)(b)(ii) is not ambiguous and there are sound reasons for rejecting the narrow meaning advocated by the Council; namely: “… the smallest number that occurs even though there may be actual numbers or amounts that are greater” (Respondent’s Written Submissions, p 4 at par 12). The first reason is that there is no reference in the text to “… the smallest distance between the front and rear boundaries that occurs on the site 40m or more”; or support for the conclusion that

“… as the smallest distance between the front and rear boundaries that occurs on the site is 38.1m (as measured from front to rear of the site along the common boundary of lots 10 and 11) it follows that subclause 2(b)(ii) of cl 4.4A does not apply to the building that is the subject of the development. Rather, the site has a depth of less that 40m and therefore subclause 2(b)(i) applies and the maximum FSR for the building on the land is 1.25:1”.

26. The Courts have held that where there is a choice between two strongly held competing interpretations, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intent. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 320 per Mason J and Wilson J. In this case, although questions of degree arise, the applicant‘s construction is perfectly consistent with underlying purpose of the clause agreed by the experts and with the implementation of the aims and objectives of the LEP with respect to the land use identified as permissible with consent. In those circumstances I would regard another construction as being irrational in the relevant sense.

27. In light of my determination, it is unnecessary to address the cl 4.6 written request lodged by the applicant as there is no exceedance of the relevant standard.

Bulk and scale

28. The R4 zone objectives are to provide a variety of housing types within that environment, and to maximise opportunities encouraging site amalgamations.

29. By encouraging amalgamations, it is intended to maximise increased development on all land within the zone, not just this site. Mr Bonus has shown in the Urban Design Study that there can be two site amalgamations in the street to the west of the site and the Council is presently considering an application for high density development on No. 8 near the entry to the Wetland. The study examines the optimum consolidation plan and looks at various constraints on developing in that pattern (at p 52 of his Study) and demonstrates how the three storey base of any building could be achieved on each of those sites. (Noting, that the building on the corner of Vine and Weston Streets has the potential for a much larger floor plate than the subject building and the building adjoining the site has the same floor plate). At p 53 of the Study, Mr Bonus shows buildings within the 20m height limit and at p 54 of the Study, he demonstrates that a building of similar density can be achieved on No. 8 Weston Street.

30. Accordingly, there can be no suggestion that this development is inconsistent with the desired future character of the area given the Council’s controls. Nor can it be said that an approval of this development will result in site isolation. Ms Sedgwick’s opposition to the DA on that ground is simply not made out on the evidence as summarised above.

31. As the applicant submits, the Council has intentionally up zoned the site and surrounding land. To the northwest of the R4 land across the railway line, there is a very substantial area zoned B4 Mixed use which is a business zone which allows shop top housing and a height limit of 39m. I observed these areas during the site view undertaken after receiving the oral evidence of the local objectors. The future intention to develop a high density environment for residential living is reinforced in LEP 2013 by the fixed FSR in cl 4.4 where it sets out the objectives for that clause. Clause 4.4A is an exception to the 2:1 FSR for this site on the FSR map but the height limit is 20m, then there is lesser FSR and that lesser FSR is based on a sliding scale assessment. Although cl 4.4A does not have a stated objective the planners agreed it is a sliding scale upwards. The greater the site area, the higher the density – with the area being described by reference to frontage and depth.

32. Dealing with the minimum area to achieve 1.5:1, you multiply 30m frontage by 40m depth and this achieves a site area of 1200m2. In this case, the site frontage is wider and the greater proportion of the site is deeper than the minimum 30m by 40m, with a site area of 1751.9m2. The building is permissible in the zone and the design is compliant with the FSR control, the 20m height control, and the setback controls in the Fairfield Citywide Development Control Plan 2013. Yet, the Council contends on the evidence of Mr Apps that the built form is excessive.

33. In that regard, accepting that the building envelope in terms of height and setbacks to the front and side boundaries are fixed, Mr Apps’ criticism of the bulk is focussed on the additional floor space manifested in the rear of the site in an area which he describes as being a “sensitive interface” which is highly visible from the Wetland (Tcpt, 1 November 2019, p 97(43)). Relying on the plans in the comparison study prepared by the applicant’s expert Mr Bonus (Exhibit L – floor plans pp 6 and 7), Mr Apps believes that the development will have a negative impact on the interface with the Wetland insofar as it brings the first 3 levels of the building on that side closer to the Wetland (by more than 4 m if the additional floor space equates to that shown in Exhibit L). He is also concerned about the property to the west (No. 5 Weston Street). While he accepts that this development will not impede the future redevelopment of the adjoining property at No. 5, and that there will always be some degree of overlooking from the site into that rear yard, Mr Apps thinks that the current design will adversely impact on the view corridor of the property of 5 Weston Street now and in any future residential development.

34. While Mr Byrne, the applicant’s planner, is of the opinion that the design is balanced having been worked through by the urban design expert Mr Bonus to end up with a base and top – and “… in terms of the impacts on the neighbour and also in terms of presentation to outside of the boundaries the proposal is highly articulated … both horizontally and vertically.” He believes that the top and the base of the development are expressed more strongly in the 1.5:1 scheme than the 1.25:1 scheme but this makes the building less bulky. His position is perhaps best encapsulated in the following extract from the transcript on Day 2 of the hearing:

“…what tends to happen by just taking a bit out is that the building, I think, becomes potentially bulkier by virtue of a single plane. Now there is still a setback. There is still a base. I acknowledge that it is far less than that base there so I think you’ve got to be careful to suggest that just taking a bit out of a building, means that it necessarily reduces the bulk and scale because we all understand bulk and scale isn’t just about FSR, It all about articulation, modulation and what you do with the elements on your building….

I am also concerned that by bringing the two planes closer together you actually end up with a perception of greater bulk from all points.”

(Tcpt, 1 November 2019, pp 99-100)

35. Mr Bonus agreed with Mr Byrne and said:

“Witness Bonus: “…sometimes a regular form can have a smaller bulk and be more compact than an irregular form as a result of its regularity. At the moment what we proposed and which is why that corner of the building is different to the urban design study that preceded it, is we had a building which has a squarish footprint that is - has –an incision through it at the street that carries through the building to the wetland so that it embraces the wetland and then it has an incision to the west to fragment what would otherwise be a long elevation.

Now those incisions are made in a regular four sided box. If you push in one corner of the box, you create an object that instead of having four sides to it, it has two additional sides so you end up with a six sided figure that is irregular in form and that can be bulkier.

Counsel Seton: Is it in this case?

Witness Bonus: we chose not to follow the urban design study for that and another reason …the E2 land including the de Fretitas Wetlands are public land. It is another part of the public domain. In the same way as one creates a consistent streetscape to the public domain by way of a consistent setback, one needs to have a similar approach to the public domain to the rear of the site which includes the wetlands and all the E2 lands that abut it and we change from the urban design study and I’m reluctant to push back one corner because I think that it and the neighbouring building should present consistently to the public land , to the public domain , to the rear of the site in much the same way as it presents to the public domain the street at the front of the site”.

…

Witness Bonus …The parcel of land that immediately joins doesn’t have a little wrinkle in its southern boundary so it will be 1.5:1 and it also has in the case of number 5 , if you look at the pattern of existing lots, it is a parcel of land that is very much deeper that every other parcel of land because it has this little tail that runs down the back of the adjoining apartment buildings and if it developed to 1.5:1 it will be considerably bigger that is neighbour by virtue of its site area and if our site were to be 1.25:1 what would follow would be an inconsistency of setback to the public domain which I think would be unfortunate.”

(Tcpt, 1 November 2019, pp 101-102)

36. In response to a series of questions about the view impact for future development at No. 5, Mr Bonus said, if the south western corner of the building were pushed back, as suggested by Mr Apps, then there would be some impact on the angle views of the Wetland for someone within a development on No. 5, but as the buildings are, in fact, going to be 13.3m apart (more than the Apartment Design Guide (ADG) would require), it is not necessary to push the building back the separation is more than enough in the circumstances (Tcpt, 1 November 2019, p 104(35)). In his opinion, the living rooms and balconies in any future residential apartment development on No. 5 will be oriented to the north and south - to take advantage of the views to the street and the Wetland not across the applicant’s site.

37. With respect to overlooking of the existing dwelling on No. 5, Mr Bonus and Mr Byrne are satisfied that the installation of louvers on the development will provide appropriate privacy for the open space area at the rear of that property – whilst retaining some views across the applicant‘s site over the existing 1.8 colorbond boundary fence.

Finding – Bulk and scale

38. I am satisfied for the reasons outlined by Mr Bonus and Mr Byrne, as summarised that the amended proposal has an appropriate bulk and scale and that there is no proper planning basis to require a redesign as suggested by Mr Apps. Shortly stated, the development reflects the built form permitted and anticipated by the R4 zoning.

39. After consolidation of the three lots the site will have a street frontage with a depth that allows a maximum FSR for a building on the land to be increased from 0.8:1 under cl 4.4A(2)(a) to 1.5:1 under cl 4.4A(2)(b)(ii)). This development complies with the permitted FSR. And, although this level of density is not an entitlement I am satisfied that the proposed form of the building will not generate unacceptable impacts for the public domain or the adjoining sites. In that regard, the evidence demonstrates that the bulk of the building at its SW corner –does not unreasonably impact the adjoining property at No. 5 Weston Street. The louvers proposed to be installed on the on the western façade of the development will, for present purposes, preclude any unreasonable overlooking from the development site to the private open space in rear yard. Accepting, as Mr Apps concedes some overlooking is inevitable given the zoning of the land.

40. It is also clear from the evidence of Mr Bonus that this proposal does not impact on the opportunity for the adjoining land at No. 5 to be redeveloped and consolidated in accordance with the R4 zone objectives. While the Council submits that this is a neutral factor in my assessment under s4.15 of the EPA Act it supports the applicant’s position that the proposal has been separated appropriately from the western boundary and sensitively designed to protect privacy and views from that site into the future and the public domain in the Wetland consistent with the planning controls and the objectives of the zone. Exhibit L makes plain the fact that the additional bulk of 438m2 (equivalent to 5 x two bedroom units at 75m2 per unit) will be perceptible, however I agree with the applicant‘s experts that the site has a land area which can accommodate this bulk and scale in the amended design without unreasonable amenity impacts.

41. The area of the basement – which protrudes as bulk above ground level at the rear – is described by the geotechnical expert, Mr Wade, as being irreducible because it is needed not only in order to achieve the gradient for vehicles to get out of the car park but also to allow for the stabilisation works (such as piles in the rock base) necessary in order to avoid collapse or cracking of the higher density built form anticipated on the site by the R4 zoning. A reduction in units and basement parking does not overcome the protrusion of the basement above ground to accommodate the geotechnical works to support an otherwise compliant building. And, while the depth of the site is generally 40m the evidence is that about 11m of the site will be utilised to accommodate the riparian area, then there is a 5m buffer minimum – and a 6m setback for building line at the frontage. The actual building area is already reduced because of these site constraints it is unreasonable to pull the building back further given its zoning and compliance with all relevant controls.

42. The upper storey of the building is setback to meet the AGD – some 12m –and one can anticipate that the future building on the western boundary would have a similar setback and any privacy/overlooking issues would be mitigated. Accepting that the public view from the Wetland is a sensitive site the evidence is that the ecological restoration that is required under the agreed conditions of consent and proposed landscaping of the site is likely in the fullness of time to obscure any loss of bulk in the south western corner achieved - if it were removed as suggested by Mr Apps. In fact, Mr Bonus believes that it is better to have a concordant built setback across the sites facing the Wetland and that removal of bulk form the south west corner of thir development would not be perceived from the main public domain viewing point in the Wetland that was inspected at the site view. I accept his expert assessment as it accords with my observations at the site view.

Local objectors

43. In coming to the decision to grant approval to the DA, I have carefully considered the oral and written submissions of the local objectors which are relevant as part of the public interest under s 4.15(1)(d) and (e) of the EPA Act. In this instance, the notification of the DA on four separate occasions has generated a large number of individual written submissions and petitions and form letters being received by the Council in objection to the development. They include objections from representatives of the Our Lady of the Rosary Catholic Church and school opposite. Collectively the local objectors reject the current R4 High Density zoning which permits the proposal. However, the Court must apply the planning controls in place at the date of the decision to the facts based on the evidence. It has no role to power to change the up zoning of the land. Furthermore, the fears and concerns expressed by the objectors in relation to traffic/parking conflicts and pedestrian safety, particularly the safety of the local school children, are not supported by the expert traffic evidence which include surveys. The development has been assessed to provide sufficient onsite parking within the two levels of basement car parking which have been assessed to be compliant with relevant Australian Standards.

44. The concerns expressed about the impacts of the development on the Wetland have been resolved by amendments to the development and the conditions of consent drafted in part by the parties’ ecologists. Ultimately in the fullness of time the view of the development from the public domain within the Wetland will be to a regenerated riparian area and extensive landscaping. In my assessment the development will not be overbearing from this perspective for the reasons explained by Mr Bonus. The design has been carefully articulated and his evidence as set out above explains that if you reduce the bulk in the south western corner of the building, it would not have a significantly ameliorative impact on bulk to the neighbour today or when developed in the future or from the view in the Wetland. While I appreciate that the fears and concerns of the local objectors are genuine beliefs, they do not displace the expert evidence that supports a conditional consent to the amended application.

Conditions

45. On 4 December 2019, the parties forwarded agreed conditions of consent incorporating the changes required to the ecological condition (condition 77) which deals with the ongoing responsibility for the riparian area and the maintenance of that area on the subject site in perpetuity. The conditions also include a revised planting schedule. After review they accord with the evidence and are acceptable to the Court.

Conclusion

46. Accordingly, for the reasons outlined the DA is acceptable after a merit assessment under s 4.15 of the EPA Act and development consent is granted on a conditional basis.

47. The Court orders are:

1. The appeal is upheld.

2. Development consent is granted to Development Application No 97.1/2018 (as amended) for demolition and construction of a six-storey residential flat building containing two basement levels of parking at 7-11 Weston Street, Fairfield subject to the conditions set out in Annexure A.

3. The exhibits are returned except for Exhibits 2, B and O.

…………………………

S Dixon

Senior Commissioner of the Court

Annexure A (198 KB)

Amendments

02 March 2020 - Correction to typographical error found at [44].

Decision last updated: 02 March 2020