Taleb v Fairfield City Council

[2018] NSWLEC 1091

Land and Environment Court

New South Wales

Medium Neutral Citation:	Taleb v Fairfield City Council [2018] NSWLEC 1091
Hearing dates:	26 February 2018
Date of orders:	06 March 2018
Decision date:	28 February 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. Development Application No. 622.1/2016 for the demolition of existing structures, subdivision into 5 allotments and construction of an attached dwelling on each allotment is approved, subject to the conditions of consent at Annexure A. 2. The appeal is upheld. 3. The exhibits, other than exhibits 1, A and B, are returned.
Catchwords:	DEVELOPMENT APPLICATION: subdivision and construction of attached dwellings; whether the lot sizes are consistent with the predominant subdivision pattern of the area.
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:	Ahmed Taleb (Applicant) Fairfield City Council (Respondent)
Representation:	Counsel: Mr S. Patterson solicitor (Applicant) Mr A. Seton solicitor (Respondent)   Solicitors: Wilshire Webb Staunton Beattie Lawyers (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2017/132361
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 622.1/2016 for the demolition of existing structures and Torrens Title subdivision of the site into 5 allotments and construction of a two storey attached dwelling on each of the 5 allotments (the proposal) at 126 High Street, Cabramatta West (the site) by Fairfield Council (the Council).

2. The appeal was subject to mandatory conciliation on 13 September 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference, it was terminated, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 8 November 2017 for the applicant to rely on an amended proposal (exhibit A). An amended Statement of Facts and Contentions was filed by the respondent on 22 December 2017 (exhibit 1).

Issues

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

• The proposed lot sizes are inconsistent with the predominant subdivision pattern of the area and with the objectives for minimum lot size in Fairfield Local Environmental Plan 2013 (LEP 2013);

• The proposal is inconsistent with the desired future character of the neighbourhood;

• The development is not in the public interest and approval of the proposal would set an undesirable precedent.

5. The planning experts agreed on a number of minor amendments to the proposal during their joint conference and those agreed amendments to the proposal are incorporated into amended plans (including a front elevation exhibit C) or imposed by agreed conditions.

6. The stormwater experts agreed that the stormwater proposal adequately addressed Council’s contentions regarding stormwater.

7. The traffic experts agreed that the proposal adequately addressed Council’s contentions regarding

8. On the basis of the agreements of the experts, a number of Council’s contentions were not pressed in the hearing.

The site and its context

9. The site is on the eastern side of High Street, between Cabramatta Road West to the south and Wilco Avenue to the north. There is currently a single storey dwelling on the site with ancillary structures.

10. The site has an area of 1,297m2, with a frontage of 30.48m to High Street. The site is an amalgamation of four allotments from the original subdivision.

11. The allotments in the original subdivision, including the four allotments that made up the site, are typically 324m2 with a frontage of 7.62m.

12. The site is burdened by three drainage easements, alongside the northern side boundary and the eastern rear boundary. The site has a cross fall of approximately 1.72m from the street frontage.

The proposal

13. The proposal is to subdivide the site into 5 allotments, as follows:

• Lot 1 260.74m2

• Lot 2 259.15m2

• Lot 3 258.89m2

• Lot 4 258.62m2

• Lot 5 259.64m2

14. The proposal is to construct a two storey attached dwelling on each of the five allotments, including two buildings, one consisting of two semi-detached dwellings and one consisting of three attached dwellings. Each dwelling has a northern side passage adjacent to the rear single storey portion of the dwelling.

15. The ground level front elevation of each dwelling has a single garage next to an entry porch leading to a front door.

Planning framework

16. The site is zoned R2 Low Density Residential pursuant to Fairfield Local Environmental Plan 2013 (LEP 2013). The objectives of the R2 zone, to which regard must be had at cl 2.3(2) of LEP 2013, 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

17. The minimum lot size development standard under cl 4.1 of LEP 2013 is 450m2 (Lot Size map Sheet LSZ_017 LEP 2013). Sub-cl 4.1(3) requires that 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. The site is located within an area outlined in blue on the lot size map identified as “Area 1”. Clause 4.1C of LEP 2013 is in the following terms:

4.1C Exceptions to minimum lot sizes for certain residential development

(1) The objectives of this clause are:

(a) to encourage housing diversity without adversely impacting on residential amenity, and

(b) to ensure that lot sizes are consistent with the predominant subdivision pattern of the area and maintain a low density residential character in existing neighbourhoods.

(2) This clause applies to development on land in Zone R2 Low Density Residential identified as “Area 1” on the Lot Size Map.

(3) Despite clause 4.1, development consent may be granted to a single development application for development to which this clause applies that is both of the following:

(a) the subdivision of land into 2 or more lots,

(b) the erection of an attached dwelling or a semi-detached dwelling on each lot resulting from the subdivision, if the size of each lot is equal to or greater than 200 square metres.

(4) Development consent must not be granted under this clause to development that may result in more than one dwelling on a lot.

18. The Council submits that there are no relevant objectives or controls in Fairfield Development Control Plan 2013 (DCP 2013) relevant to the issues remaining in dispute between the parties.

Expert evidence

19. The applicant relied on the expert planning evidence of Mr Joseph Vescio and the Council relied on the expert planning evidence of Mr Robert Walker.

20. The applicant relied on the expert civil engineering evidence of Mr Moussa Zaioor and the Council relied on the expert civil engineering evidence of Mr Stephen Rajathurai. The experts’ joint report was tendered as exhibit 4 and the experts were not required to give evidence.

21. The applicant relied on the expert traffic evidence of Mr Robert Varga and the Council relied on the expert traffic evidence of Mr Simon Cai. The experts’ joint report was tendered as exhibit 5 and the experts were not required to give evidence.

22. Mr Walker agreed under cross-examination that the locality is an eclectic mix of built forms and that the street elevation of the amended proposal, shown in exhibit C, manages to successfully integrate the garages into the street façade.

Consideration

23. I accept the agreed submission of the parties that the proposal satisfies the requirements of the operative sub-cl (3) of the development standard for minimum lot size in cl 4.1C of LEP 2013. The proposal is for the subdivision of land into 5 lots, being more than two lots, which satisfies (a); and the proposal is for the erection of attached dwellings and semi-detached dwellings on each of the 5 lots resulting from the subdivision and the size of each of those lots is greater than 200m2, which satisfies (b).

24. I accept the agreed submission of the parties that compliance with the factual matters dictated by the operative clause of the development standard for minimum lot size at cl 4.1C(3) of LEP 2013 is the means by which the planning objectives at cl 4.1C(1) of LEP 2013 are achieved (Wehbe v Pittwater Council (2007) 156 LGERA 446 [43]). There is only a requirement in LEP 2013 to have regard to the objectives of the development standard if the matters in cl 4.1C(3) are not met and an exception to the development standard is sought by the applicant under cl 4.6 of LEP 2013.

25. I accept the Council’s submission that there are no relevant objectives or controls in DCP 2013 in relation to the outstanding issues raised by the pleadings.

26. I accept the agreed evidence of the planning experts that the original subdivision has resulted in a mix of development in the locality. The character of the area is not wholly dictated by the regular pattern of the original subdivision despite its gridded layout and uniform allotments, because the development in the locality includes detached dwellings on more than one original allotment; detached dwellings on original allotments; semi-detached dwellings on original allotments; and contemporary attached dwellings with building envelopes that are significantly larger than most of the earlier development. For this reason, the proposal, with five dwellings positioned on four original allotments, will be broadly consistent with the character established by more recent development and is consistent with the desired future character for the locality dictated by the 200m2 minimum lot size for attached dwellings on lots resulting from a subdivision in cl 4.1C(3) of LEP 2013.

27. Mr Walker correctly opines that the proposal will result in allotments that are discernibly narrower than much of the surrounding development in the locality, particularly contemporary attached dwellings, and that the proposal results in a proliferation of driveway crossovers over a relatively short distance. In my opinion, the street elevation shown in exhibit C fails to provide a design solution with a clear hierarchy and logical layering of built elements and materials that make up the façade. Nevertheless, the proposal is consistent with the planning framework provided by Fairfield Council’s planning instruments and Mr Walker’s criticisms of the proposal are therefore not determinative.

Conclusion

28. The compliance of the proposal with the requirements of the development standard at cl 4.1C(3) of LEP 2013 is the means by which the planning objectives at cl 4.1C(1) are achieved.

29. The proposal is not inconsistent with the desired future character of the neighbourhood because the proposal is consistent with the desired future character for the locality dictated by the 200m2 minimum lot size for attached dwellings on lots resulting from a subdivision in cl 4.1C(3) of LEP 2013.

30. The current planning regime is extremely likely to encourage similar development applications for properties located within the areas identified as “Area 1” on the minimum lot size maps in LEP 2013 able to utilise the exception in cl 4.1C of LEP 2013, regardless of any precedent set by this proposal.

Orders

31. The orders of the Court are:

1. Development Application No. No. 622.1/2016 for the demolition of existing structures, subdivision into 5 allotments and construction of an attached dwelling on each allotment is approved, subject to the conditions of consent at Annexure A.

2. The appeal is upheld.

3. The exhibits, other than exhibits 1, A and B, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (105 KB, pdf)

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Decision last updated: 06 March 2018