Yessaeian v City of Ryde

[2018] NSWLEC 1474

Land and Environment Court

New South Wales

Medium Neutral Citation:	Yessaeian v City of Ryde [2018] NSWLEC 1474
Hearing dates:	13-15 August 2018
Date of orders:	05 September 2018
Decision date:	05 September 2018
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No. LDA2017/0167 for a residential flat building at 6 Lexcen Place Marsfield is refused. (3) The exhibits are returned with the exception of Exhibits A, 3 and 6.
Catchwords:	DEVELOPMENT APPLICATION: residential flat building – Affordable Rental Housing - implications of Planning Proposal – is draft LEP imminent and certain– parking – DCP weight – resident concerns
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ryde Development Control Plan Ryde Local Environmental Plan 2014 State Environmental Planning Policy Affordable Rental Housing 2009
Cases Cited:	Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Raffi Yessaeian (Applicant) City of Ryde Council (Respondent)
Representation:	Counsel: P Tomasetti SC (Respondent)   Solicitors: J Palmer, Pikes & Verekers Lawyers (Applicant) City of Ryde Council (Respondent)
File Number(s):	2017/273915
Publication restriction:	No

Judgment

Introduction

1. This is a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the refusal of Development Application No. LDA2017/0167 lodged with City of Ryde Council. The development application (‘DA’) seeks consent for a residential flat building at 6 Lexcen Place Marsfield (‘the site’).

2. The application involves the demolition of existing buildings on the site and then construction of a two-storey residential flat building comprising four apartments (1 x 3 bedroom, 3 x 2 bedroom) over basement parking for five vehicles. The application before the Court has been modified considerably since that originally submitted to Council and notified.

Site and Context

3. I rely on the Statement of Facts and Contentions prepared by the City of Ryde Council (‘Council’) for these particulars.

4. The site, also known as Lot 70 in DP 718680, is somewhat irregular in shape with a curved frontage to Lexcen Place. The area is indicated as 611.6m2.

5. The site contains a single storey brick dwelling house with a pitched tiled roof. A driveway to the north-eastern side boundary provides vehicular and pedestrian access from Lexcen Place to the dwelling house. The site has a slope towards the rear, with a fall of 2.2m over the 35m length (approx.) of the site, suggesting a gradient of approximately 1 in 16 or 6%. The site is clear of any significant vegetation, accommodating only some small garden shrubs and trees, predominantly to the rear.

6. Relevantly, the site is within an area known as the “Dunbar Park Estate”. The evidence indicated that this area (totalling around 7ha) had originally been intended for school purposes, and was so zoned in the 1970s. By the early 1980s, the Department of Education had abandoned its plans. The estate was subsequently rezoned to a “Residential E” zone which permitted a range of residential development types including, pertinently, “residential flat buildings”. Nonetheless, the type of development which has eventuated is commonly single detached dwellings, with some duplex developments and "triplex" developments, generally one to two storeys in height.

Statutory framework

7. Today, the subject site is zoned R3 Medium Density Residential under Ryde Local Environmental Plan 2014 (‘RLEP’) and is also affected by Ryde Development Control Plan 2014 (‘RDCP’). The proposal is permissible in the R3 zone. It is notable that a draft LEP has been prepared and exhibited which would rezone the site and wider “estate” to R2 Low Density Residential, a zone in which residential flat buildings are prohibited.

8. The proposal relies on State Environmental Planning Policy Affordable Rental Housing 2009 (‘SEPP - ARH’) which aims to facilitate the delivery of new affordable rental accommodation, in part by providing incentives by way of floor space ratio bonuses. Subject to meeting certain pre-requisites, these incentives can apply to proposed residential flat buildings. In so far as the proposal is concerned the joint expert report summarises the position here as follows:

At 0.59:1 the FSR of the proposed development exceeds the 0.5:1 maximum for the site under the provisions of the RLEP 2014. Despite this, the proposal complies with the FSR provisions of cl.13 of SEPP ARH 2009 which would allow up to 0.73:1 on the subject site given the proposal includes approximately 23% of its gross floor area (GFA) as affordable housing.

Site view

9. The hearing commenced with a site view. During the site view there were objections expressed by a number of adjoining or nearby owners as well as two other speakers with more general objections to the proposal on character compatibility grounds. The objectors commonly referenced the fact that a zoning change was proposed which would make residential flat buildings prohibited in the estate.

Issues

10. Amending plans had narrow the Council’s contentions and the issues remaining can be considered under four headings:

1. Basement car park arrangements

2. Implications of the draft LEP (to rezone the estate to R2 Low Density Residential)

3. Submissions from objectors

4. Affordable housing considerations.

11. The experts providing evidence at the hearing on these issues were: Mr C McLaren (traffic/parking) for applicant, Mr D Pearse (traffic/parking) for Council), Ms A McCabe (planning) for applicant, Ms G Morrish (planning/urban design) for Council, Mr B Tesoriero (planning) for Council.

Basement car park

Assessment framework

12. The experts relied on different documents for assessment of the basement parking. Australian/New Zealand Standard 2890.1:2004 - Parking facilities - Part 1: Off-street car parking (‘the AS’) provided Mr McLaren’s core reference document. Council’s DCP provided Mr Pearse’s core reference document. Mr McLaren believed the AS prevailed over the relevant DCP provisions and Mr Pearse believed the opposite.

13. It was agreed by both parties that generally the appropriate design vehicle for these purpose was the 85th percentile car (‘B85 vehicle’). 85% of vehicles would be at or under this size. Some reference was also made to design standards for the B99 vehicle, representing a vehicle size which 99% of vehicles would be at or under.

Turning movements

14. The most critical of what I am describing as three inter-related “sub-issues” associated with the basement car park is that of the turning movements for parking cars. It was Mr Pearse’s evidence, uncontested, that each of the five parking spaces require a “5-point manoeuvre”, in total, to enter and exit basement parking (para 10, Exhibit L). The three “eastern spaces” (numbered 3, 4 and 5) would require a 3-point turn for ingress and a 2-point turn for egress. For these spaces, Council also raised with what was perceived as a relatively long reversing movements required for access. The two “western spaces” (numbered 1 and 2) involved a single movement for ingress and then a 4-point movement for egress.

15. The DCP (Section 4.2(a)) provides, in part, as follows:

Provision must be available within the property to enable vehicles (85th percentile vehicle) to enter and leave the designated parking space in a single 3 point turn manoeuvre…

In oral evidence Mr Pearse confirmed that in the DCP’s Section 4.2(a) the phrase “3 point turn manoeuvre” was the total for both entry and exit movements. Mr McLaren agreed he understood this to be the DCP’s meaning. That is, the DCP is requiring car parking space accessibility involving, say: a direct forward movement into the space, followed by a reverse out of the space for a distance, then forward back out into traffic (vice versa arrangements may also be satisfactory, but in this case there is a separate restriction on reversing out of a basement onto the public road).

16. The AS is less clear-cut. There are two main reference points in the AS used by the experts on the question of turning movements. The first is Table 1.1 (at p9). While this table is called “Classification of Off-Street Car Parking Facilities”, its interest here is the commentary it provides on turning paths into parking spaces for differently classified parking areas.

17. Mr McLaren noted that the proposed basement car park would qualify as a “Class 1A” parking area under Table 1.1 (for “residential, domestic and employee parking”). He observed that the AS supports arrangements involving one set of 3-point turn movements for ingress, and another set of 3-point turn movements for egress – a less constraining position than the DCP.

18. Mr Pearse agreed with the Class 1A classification and evidenced that the AS was indicating that a 3-point turn for either ingress or egress may be considered appropriate. But he also referenced a note to Table 1.1 which provides in part:

The modelling of vehicle manoeuvring into Class 1A spaces shows however that many drivers may have difficulty driving into and out of such spaces, especially with vehicles larger than a B85.

19. Related to this point, Mr McLaren stated in the joint expert report:

AS2890.1:2004 Section B4.8 (refer to extract in Annexure C) states that for

developments where space is limited and there is a low turnover of vehicle trips, users are generally prepared to accept some inconvenience when entering or leaving spaces. One of these concessions being a MINIMUM of 3 or 5 manoeuvres in the common space needed to enter OR exit some of the spaces.

20. The second provision of relevance in the AS is a commentary at Paragraph B4.8 of Appendix A. The two experts took markedly different interpretations of this commentary. I refer to this difference in my evaluation below.

Passing bay

21. The second “sub-issue”, in regard to basement parking, is the contended need for a passing bay to address the possibility of conflict between the basement’s ingressing and egressing cars.

22. The traffic experts again disagreed on the need for a passing bay for the basement parking access. Mr Pearse indicated the DCP required it. Mr McLaren said the AS indicates one is not required.

23. Again I am directed to the particulars within the documents. Council’s provisions for “Internal Access Road Widths” (p19 of Section 8.3 of the DCP) include the following (my emphasis):

Residential properties containing 10 vehicle parking spaces or less, shall provide a minimum carriageway width of 3.0 metres however there must be provision for vehicle passing at least every 30 m by way of a passing bay with a minimum carriageway width of 5.5 metres and minimum length of 5.5 metres and suitable transitions.

24. In turn, Section 3.2.2 of the AS provides as follows:

As a guide, 30 or more movements in a peak hour (in and out combined) would usually require provision for two vehicles to pass on the driveway, ie a minimum width of 5.5m. On long driveways, passing opportunities should be provided at least every 30m.

Swept path clearances

25. The third “sub-issue” is in regard to swept path clearances. That is the additional allowances that should be applied to the design turning paths for cars. The contention is that there are breaches of the required clearances in the basement parking.

26. Both DCP and AS require a 300mm clearance to be added to both sides of the design vehicle turning path. The extent of the breaches were indicated in drawings and examined in oral evidence in the hearing. These breaches involved: overlap into other parking spaces, conflict with a basement wall, conflict with a short kerb line which extended beyond a pier at the base of the ramp. In oral evidence Mr McLaren indicated that the short kerb would not be required. My consideration of swept path clearances is included below.

Evaluation

27. The circumstances in regard to the basement parking in this case are one where experts on either side bring largely opposite opinions, with an important question whether FDCP or AS provisions should prevail. Mr Tomasetti referred me to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (‘Makita’). Makita’s particular point of interest to me is the emphasis it provides on the Court taking direct account of available framing “criteria” (documentary or otherwise) used by the experts, this to assist in testing the accuracy of expert conclusions [59].

Weight to the DCP vis-à-vis Australian Standard?

28. Mr McLaren’s evidence was that it was routine practice in his experience for consent authorities to require car parking areas to “be designed in accordance with the Australian Standard”. His view was the AS was subject to considerable rigor in its preparation and (unlike the DCP) delineated different parking area design criteria for different types of development (ie based on different user needs). For these reasons he felt the AS (rather than the DCP) should be adopted as the base for evaluation of the proposed turning movements.

29. Mr Pearse’s evidence was that Council had consciously sought to deliver its own parking area controls. There were two pieces of documentary evidence to support this position. First, the DCP provides in regard to controls for “designing internal access roads and parking spaces” (at Section 8.3.4.1):

In so far as any inconsistency exists between criteria outlined below (ie in the DCP itself) and the Australian Standards, the criteria in this document shall apply.

Second, the AS itself provides in its foreword (p4):

Although it provides minimum requirements, this Standard cannot be taken as a textbook for the design of parking stations. The services of a qualified person experienced in designing car parking facilities should be sought in the application of this document. Moreover, its use does not remove the need to comply with regulatory requirements of local government.

30. It is clear to me from the documents that: (1) the intended effect of the DCP is that it be applied directly to DAs of itself, rather than be subservient to the AS and, (2) the AS acknowledges it does not override regulatory requirements of local government.

31. Clearly the proposal is non-compliant with the DCP in regard to turning movements. On the basis of the evidence, I see no reason to think the DCP should take a position of subservience to the AS, and rather that it have considerable weight in the circumstances.

DCP non-compliance - considering the need for DCP’s to be flexibly applied

32. Mr Palmer referenced s 4.15(3A) of the EPA Act and its provisions regarding the flexible application of DCP standards. The pertinent provisions are at subs (b) and can be paraphrased as follows:

(If the applicable development control plan) provisions set standards with respect to an aspect of the development and the development application does not comply with those standards— (the consent authority) is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.

33. My interpretation is that s 4.15(3A)(b) of the EPA Act is saying two things: (1) that applicable standards contained in DCPs need to be applied flexibly, and (2) that in applying this flexibility the consent authority needs to allow reasonable alternative solutions that achieve the object of the standard. I consider the more overarching requirement, to apply development controls plans flexibly, later, when balancing the sometimes competing considerations involved in the DA evaluation. Here I consider the second (narrower) factor which directs attention to “the objects” which the DCP provision is concerned with, and the need to allow alternative solutions which meet that object.

34. The pertinent objects from Section 8.3.1 of the DCP are:

2.To ensure that parking areas are readily accessible useable and adequately provide for circulation and manoeuvring of vehicles.

4.To encourage the efficient flow of traffic through carparks to minimise the potential for pedestrian and vehicular conflict.

35. I have a mind to Mr Tomasetti’s submission that Council is evidently looking for a high standard for parking areas in the LGA. In alignment with this, I see these as relatively confined objectives when compared to the AS. It is notable that, for example, there is no DCP objective to balance “function and economics”, as there is in the AS (Foreword, p4).

36. As I understand it, the explanation of its objective to provide “readily accessible”, useable”, “adequate”, “safe” parking is found in the provisions in the DCP controls, and it manifests (in part) in the 3-point turning movement control for ingress and egress (in total).

37. The Council position also seems to find some support within the AS itself (Note 1 to Table 1.1 – see [18]) that there are potential accessibility, useability, efficiency and thus adequacy concerns with a car parking arrangement which provides 3-point turns (and more), as proposed.

38. If it were to be inferred from Mr McLaren’s evidence [19] that there was AS support for “inconvenience” to the point of “5 manoeuvres”, and that this position provides assessment support for the current DA (assessed on the basis of B85 design vehicles), this does not seem to be supported by a plain reading of the AS document. Paragraph B4.8 of the AS (reproduced below) indicates it would only be “very large vehicles” which would need to make a 5-point turn, this under “concessions” which have been made in regard to aisle widths:

B4.8 Parking in residential and domestic car parks

A reduction in aisle width from 6.2m to 5.8m has been allowed in Figure 2.2 at User Class 1A developments (see clause 1.4) for 90° turns into parking spaces. This concession which is designed to be of assistance where space is limited recognises that such developments will have low turnover and users generally prepared to accept some inconvenience when entering or leaving the parking space tests have shown that most vehicles larger than the B85 the vehicle will need to make a three-point turn if the manoeuvring space is the minimum allowable. Some very large vehicles may need to make a five-point turn.

39. Further, it seems to me that, AS Paragraph B4.8’s reference to “most vehicles larger than B85 vehicles” being the vehicles needing to make the 3-point turn where “manoeuvring space is the minimum allowable”, does not assist an argument that 3-point turns should be standard parking arrangements for B85 vehicles.

40. The AS suggestion of “three-point turn entry and exit into 90o parking spaces only” (AS Table 1.1), is not complied with in the proposal. While the AS comments in its Appendix that in low turnover domestic parking areas (which I believe is the case here): “users are generally prepared to accept some inconvenience when entering or leaving spaces” (AS Appendix A Paragraph B4.8), the AS also directly comments on the likelihood of difficulty for drivers making the 3-point turn movement (notes to Table 1.1).

41. Turning back to the particulars of s 4.15(3A) of the EPA Act, there were “alternative solutions” suggested in the evidence. The particular response that warrants mention here is a proposed turntable. While Mr McLaren supported the design without a turntable, the experts agreed that a turntable within the basement would reduce inconvenience for drivers entering and exiting certain spaces (in particular spaces 3, 4 and 5).

42. I am not convinced that a turntable provides an adequate response to the DCP objectives and the problems identified with the basement parking. My concern is not whether it would physically fit (the experts agreed that there was room for a turntable device), the issue is the extent of inconvenience still associated with the use of such a device by drivers. Mr McLaren described the turntable-use process as quite cumbersome, generally involving: (1) the driver moves the car onto the turntable (manoeuvring onto a defined and marked area upon the turntable), (2) driver leaves the car to access the “turntable start-up device” and switches on the turntable, (3) driver waits for the car to move around to the easier drive-off position, and (4) driving off.

39. While this exercise may well be seen as useable and adequate in areas where parking is quite scarce (eg inner city locations or near transport of commercial hubs) or in areas where access is difficult; in a suburban setting like this, it would seem just as likely for a driver to look for street parking than go to the inconvenience of using a turntable. I might note that I am surprised that it was not more commonly possible to stay seated in the car for the turning exercise – even if it were, this would not change this conclusion.

40. In evidence, there was also some consideration of the possibilities of expanding the basement parking area in order to meet DCP requirements. I note that this was not seen as something that could necessarily be readily achieved as the somewhat generous setbacks adopted in the design (including for underground areas – which defined deep soil zones) were in part associated with achieving the character compatibility objectives of the overall development.

41. The question of the wider balancing of the basement parking’s non-compliance, with other factors, is considered in the conclusions at the end of this judgement. But insofar as s 4.15(3A)(b) of the EPA Act is concerned, I am not persuaded that there are alternative solutions presented in the evidence that adequately respond to the policy objectives evident in Section 8.3.1 of the DCP.

Conclusion on basement car parking

46. In regard to turning movements, the DCP has weight in the circumstances and there is a significant non-compliance in regard to the manoeuvring arrangements for the proposed basement parking. The significance of this elaborated upon in the judgement conclusions.

47. In regard to the need for a turning bay, the provisions of the DCP might be interpreted two ways: (1) the requirement for passing bays commences at 30m driveway length, or (2) a passing bay every 30m inclusive (ie from the very start of the driveway). The latter interpretation seems counterintuitive as it would imply there is always a need for a passing bay. I therefore prefer the former. In my assessment neither the DCP or AS provisions would require a passing bay in this instance. This seems to line up with the low risk of conflict suggested in Mr McLaren’s evidence.

48. In regard to the 300mm turning path clearance requirements, while I accept the non-compliances, the extent is low and might be thought of as within tolerances in a low turnover residential setting, for me this non-compliance would not be determinative.

Implications of Draft LEP

Background

49. On 13 April 2018 a Gateway Determination was made by the delegate of the Greater Sydney Commission in regard to a Planning Proposal prepared by Council. The Planning Proposal provides for a draft LEP which would have the effect of rezoning the subject land (and the rest of the Dunbar Estate) from R3 Medium Density Residential to R2 Low Density Residential under Ryde LEP 2014. Residential flat buildings (as proposed in this case) are prohibited within the R2 Low Density Residential zone in RLEP.

50. Council indicated in the addendum Statement of Facts and Contentions (Exhibit 3) that the Planning Proposal had been publicly exhibited between 6 June 2018 and 6 July 2018. Council also indicated in Exhibit 3 that “the Secretary’s approval would be sought in the week commencing 13 August 2018 with a final report recommending that the plan be made being submitted to a council meeting in September 2018”.

Statutory position

51. Section 4.15 of the EPA Act prescribes matters for consideration in a consent authority’s evaluation of a DA. The provisions are well known but relevant to the draft LEP question, it provides:

4.15 Evaluation

(1) Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

…

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority …

52. The draft LEP would be interpreted as a “proposed instrument” under s 4.15(1)(a)(ii) and, as public consultation on it has occurred, it is a matter “to be taken into consideration” in the evaluation of the DA.

Questions which arise

53. The questions which arise in regard to the draft LEP can be summarised as follows: (1) extent to which draft LEP is to be taken into consideration – this is related to its certainty and imminence (Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 at [33]), and (2) what new attention is required if the draft LEP is to be taken into consideration.

Certainty and imminence of the draft LEP

54. The Gateway Determination Report prepared by “NSW Planning and Environment” and signed off by “Director, Sydney Region East Planning Services” evidenced conditional support for the Dunbar Estate Planning Proposal. One of the conditions related to the treatment of current DAs. Relevantly here, the report recommendations included (Exhibit E, p7):

The proposal should be updated prior to community consultation to:

• confirm that a savings provision clause will be added to the Ryde LEP 2014 to ensure the proposal reflects current applications or court hearing processes …

55. In alignment with the Gateway report, Condition 1 of the formal Gateway Determination, signed by the Delegate of the Greater Sydney Commission provided that:

1. Prior to undertaking community consultation, the planning proposal is to be updated to:

a) Include a new savings transition clause to ensure the proposed rezoning does not affect any current development applications or appeal processes

b) Address the Greater Sydney Region Plan and North District Plan

56. Council’s Manager Urban Strategies wrote to its General Counsel by memo dated 9 August 2018 indicating the intended approach to the Gateway Determination’s “Condition 1”:

Condition 1 (of the Gateway Determination) was fully complied with prior to the exhibition of the Planning Proposal. Noting that the final wording of the transition clause will be confirmed by Parliamentary Counsel to finalisation of the plan, it is anticipated the wording of the transition clause will be similar to typical provisions of this type, such as:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this plan had not commenced.

The wording has not yet been confirmed and will be confirmed by PC prior to the finalisation of the plan.

57. Conditions 5 and 6 to the Gateway determination also have pertinence:

Following community consultation and prior to finalising the LEP, the agreement of the Secretary to the proposal’s inconsistency with section 9.1 Direction 3.1 Residential Zones is to be obtained.

The planning proposal authority is authorised as the local plan-making authority to exercise the functions under section 3.36(2) of the Act subject to the following:

The planning proposal authority has satisfied all the conditions of the Gateway determination

The planning proposal is consistent with section 9.1 Directions or the Secretary has agreed that any inconsistencies are justified and

There are no outstanding written objections from public authorities.

58. Mr Tomasetti argued that the draft LEP was certain and imminent, and that given the relative certainty and imminence considerable weight was warranted.

59. Mr Tomasetti also submitted that he believed the intention was to account for Condition 1 of the Gateway determination by using the standard transition clause (common to contemporary LEPs), which is in fact already within the Ryde LEP. It provides as follows:

1.8A Savings provision relating to development applications

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

60. There is a body of case law which refers to circumstances where a draft LEP is a “matter for consideration”, equivalent to the current provisions at s 4.15(1)(a)(ii) of the EPA Act, and with savings clauses similar to cl 1.8A above (see for example Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289 (‘Terrace Tower’) [46-47] and Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 (‘Blackmore’) [22-28]). Provided the threshold test of imminence and certainty is met, and while it is a matter for the circumstances of individual cases, it is not for the notionally draft local environmental plan to be afforded determining weight in the cases.

61. When I asked Mr Tomasetti how the standard cl 1.8A, alone, would account for the apparent ambitions evident in the Gateway Determination (ie “(to)ensure the proposed rezoning does not affect any current development applications or appeal processes” – as per Condition 1(a) in the Gateway determination), he pointed out that the report recommendation was prepared without input from Parliamentary Counsel. My appreciation of this and further commentary was that Mr Tomasetti thought it not realistic, or at least likely, in legal terms to think that anything other than the standard savings clause (ie cl 1.8A) would or could be provided for with the LEP changes afoot here. Mr Palmer, for me helpfully, called it a suggestion of “infelicitous drafting” by those preparing the Gateway Report and determination.

62. Mr Palmer’s arguments to suggest the draft LEP was neither certain or imminent were twofold. First, that the apparent State government level planning intentions to not affect the subject DA, evident in the Gateway Report and determination, should be treated at face value. Here I understood the suggestion to be that the State government-level planning officials were concerned that the planning system support a proponent’s reasonable expectations about development potential for a site including its reliance on zoning particulars when preparing and lodging a DA. Mr Palmer cited the objects of the EPA Act, in particular objective (c) at s 1.3 of the Act which is:

…to promote the orderly and economic use and development of land

63. Mr Palmer’s second point was that there was no way to know whether the Secretary would be satisfied with the inconsistency of the proposal with the Act’s provisions for Ministerial Directions at s 9.1, and in particular Direction 3.1 Residential Zones which in part provides:

(5) A planning proposal must, in relation to land to which this direction applies:

…

(b) not contain provisions which will reduce the permissible residential density of land.

64. Mr Tomasetti’s submission on the second point was that the draft LEP would be considered of “minor significance” and thus be seen as justifiably inconsistent by the Secretary under cl (6) of Ministerial Direction 3.1.

65. While I would think it quite likely that the scale of reduction of “permissible residential density” involved here could be seen as of minor significance to the Secretary, but in part mindful of Makita as referenced above, there is no particular evidence presented to suggest a high degree of certainty on this.

66. Of more concern to me in regard to the question of the imminence and certainty of the draft LEP is what I see as a “loose end” in regard to the direct question of the effect of the intended zoning change on pre-existing DAs. It is clear that a factor in the decision of the State-level planning officials to support the draft LEP is that “a new savings transition clause” be included in the draft LEP which has the effect of “(ensuring) the proposed rezoning does not affect any current development applications or appeal processes”. This is a precondition of the Gateway determination (Condition 1(a)), and while Condition 6 of the determination authorises Council to exercise the plan-making function under s 3.36(2) of the EPA Act, it is conditional on satisfying the conditions of the determination (including Condition 1). The Council memo of 9 August 2018 [56] implies an intention to use the standard savings clause (cl 1.8A). Then, the case law indicates that cl 1.8A would not ensure that pre-existing (ie “current”) DAs are not affected by “certain and imminent” draft LEPs [60]. This might be thought of as the reason behind the Gateway determination Condition 1 requirement for a “new” savings transition clause.

67. Mr Tomasetti suggested he was not aware in his experience of other than standard savings clauses in contemporary LEPs and no doubt one of the intentions of the Standard Instrument (Local Environmental Plans) Order 2006 is to increase the level of LEP standardisation. However, it is reasonable to consider at this point that the possibility at least remains that a “new” savings provision would be included, with the intended effect as outlined in the Gateway determination (while I have no familiarity with the circumstances behind it, or indeed whether there are any other instances where this occurs, I am aware that there is an additional (site specific) savings-related provision in Randwick Local Environmental Plan 2012 at cl 1.8A(2)).

68. The certainty of the draft LEP content remains a matter of conjecture. The content matter which his under question is directly pertinent to the current application – that is, the question of the weight to be applied to the draft LEP itself. In addition the draft LEP is only “reasonably imminent” according to Mr Tomasetti, with a gazettal target date of April 2019 suggested. In the circumstances, and in particular in regard to the question of certainty of content, it is appropriate to consider the draft LEP provisions as only of minor significance.

What new considerations come forward if the draft LEP is to be taken into consideration?

69. Even as a matter of minor significance the draft LEP requires some attention. Mr Tomasetti referenced Terrace Tower, and in particular comments from the former Chief Justice at [7]:

Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.

70. The question of local (neighbourhood) character is considered in the joint reports of the planning and urban design experts. There were two reports. The first report considered circumstances without the existence of the draft LEP, the second report took account of the draft LEP.

71. The experts were aware of the local character compatibility test arising at cl 16A of SEPP ARH.

72. It was common ground in the first report that the proposal satisfied the compatibility criteria evinced in the commonly referenced case Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 (‘Project Venture’). Project Venture asks two questions:

a) Is the proposal’s appearance in harmony with the buildings around it and the character of the street?

b) Are the proposal’s physical impacts on surrounding development acceptable?

In response to a) above, the experts agreed that “the proposal’s appearance is in harmony with the buildings around it and the character of the street.” (Exhibit K, p6-7). In response to b) above, the experts agreed that the proposal’s physical impacts (having specific regard to each of the areas of: overshadowing, visual privacy, acoustic privacy, visual impact) were “considered acceptable” (Exhibit K, p7-8).

73. In the second planning/urban design expert report, the experts presented evidence to assist the Court were it to decide weight was to be given to the draft LEP (to change the zoning from R3 to R2). The report noted the objectives for each of the zones:

LEP Objectives

Zone R2 Low Density Residential

1 Objectives of zone

• 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.

• To provide for a variety of housing types.

Zone R3 Medium Density Residential

1 Objectives of zone

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To encourage revitalisation, redevelopment and housing choice in a residential area.

74. The experts noted that the key differences in the objectives are the words ‘low density residential environment’ versus ‘medium density residential environment” and that the R3 zone encourages ‘revitalisation, redevelopment and housing choice in a residential area’. Both zones allow bed and breakfast accommodation, child care centres, community facilities, dwellings, multi dwelling, boarding houses, dual occupancy (plus some other additional uses). The R3 zone also allows RFBs and attached dwellings among other additional uses. Other particulars of the differences do not require attention here.

75. In the broad, Ms McCabe indicated no change to her position of support for the proposal in regard to its local character compatibility if the dLEP were to be given weight. Council’s experts presented a different position. Mr Tesoriero’s opinion was that the proposal was not compatible with “the desired future character of the R2 Low Density Residential Zone”. Ms Morrish also referenced different “desired future character” expectation with an R2 zone, and referenced various DCP particulars to support this position. She suggested:

The tolerance to greater household intensity and site coverage is a direct response to the objectives and typologies that might occur within the visual catchment in the future and that is different between the R2 zone and the R3 zone.

76. In considering the expert evidence, and briefly here given the weighting I give to this consideration, it seems to me that the local setting is already better described as a “low density residential environment” than a “medium density residential environment”. I note the evidence (notwithstanding the basement parking question addressed below) that the current proposal has been subject to redesign of its physical form to address character concerns. In addition I note that multi dwelling housing, boarding houses, dual occupancy are among the permissible uses in the R2 zone as well. I am not convinced that the proposal would undermine the objectives of the R2 zone in a substantial way, insofar as the matters covered by the planning/urban design experts are concerned. Clearly, the current LEP is the operative environmental planning instrument for this matter. But having considered the draft LEP, I see no issues arising which might significantly influence the evaluation of the subject application.

Lay objections

77. During the site view there were submissions from a number of neighbours with particular amenity impact concerns. There were also submissions that the proposal would be an overdevelopment of the site and that it would be incompatible with the low density residential character of the street. These arguments were also put by some objectors not personally impacted by the proposal. The objections on these more general grounds commonly referenced the fact that a zoning change was proposed and was near completed. Here a reference was also made proposals for very large amounts of apartment development closer to major transport hubs and Macquarie University..

78. I have considered the draft LEP and the specific question of character compatibility above ([69]-[76]). I have also given consideration to cl 16A of SEPP – ARH and am mindful that this test is of compatibility rather than replication. I find, on the evidence, the proposal generally acceptable in regard to that matter. In using the term “generally”, I recognise there is something of a relationship between local character and the basement parking issue considered further in the conclusions below.

77. The neighbours raised objections in regard to overshadowing, privacy, visual massing and inconvenience associated with loss of on-street parking. I note the particulars of the detailed analysis of such factors in the first planning/urban design joint report (Exhibit K), and the agreement reached that the proposal was acceptable under current controls (which as discussed above is the pertinent test here). In coming to this conclusion I also the stated position of preference in oral evidence of fencing (over screen planting alone) as a visual screen to the properties at Sobraon Road.

Affordable housing

80. In final submissions, Mr Palmer referenced another object of the EPA Act. This was at s 1.3(d) of the Act:

to promote the delivery and maintenance of affordable housing,

81. The submission I believe was that the proposal not only provided affordable housing under SEPP – ARH, but was also providing for somewhat higher density forms of development in the locality which would be more affordable than lower density forms. This was seen to directly align with this affordable housing object of the EPA Act.

82. Mr Palmer also referenced a Council meeting minute dated 22 August 2017 included in Exhibit G which was directly supportive of provision of more affordable (including ‘key worker’) housing in the local government area.

83. Mr Tomasetti’s submission in response was that affordable housing was attended to by SEPP – ARH and that the benefits of the SEPP were already applied to the development.

84. I will consider this matter in the conclusions below.

Conclusions

85. A central concern with the proposal is its non-conformance with Council’s DCP with respect to on-site parking. I note the authorities on the application of DCPs presented at the hearing in particular Zhang v Canterbury City Council [2001] NSWCA 167 (‘Zhang’) and Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 (‘Stockland’). Mindful of Zhang, Mr Tomasetti referenced the need to give “proper genuine and realistic consideration of the DCP” [62] which ought to “serve as a focal point” for deliberation on the DA [77].

86. Mr Palmer also referenced Zhang, and its emphasis on how DCPs must be distinguished from LEPs. That is to say that while LEPs are “determinative” and a contravention (in principle) must require refusal, DCPs are discretionary instruments, which need to be taken into account, but among other matters [74]-[75].

87. I turn to the findings of the former Chief Judge in Stockland. While here talking about adopted “urban design controls”, McClellan CJ found:

Unless cogent reasons suggest otherwise, a council is also entitled to expect the Court to require development to conform to the adopted parameters.

88. Under s 4.15(1) of the EPA Act, clearly DCPs are “matters for consideration” only and a non-conformance is not of itself determinative. There may often be “cogent reasons” why it would be inappropriate for the Court to require DCP parameters to be met. Stockland provides advice on the correct approach to consideration of, and weight to be given to, DCPs. Four of the five principles are relevant here and I reproduce them below. The consideration of them (in particular, what I below nominate as Principle 3) also allows for a weighing together of some of the other issues at hand in the hearing.

1. A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.

2. A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.

3. A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.

4. Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.

89. In regard to what I reference as Principle 1 above it can be assumed the DCP was prepared in accordance with public participation requirements of the EPA Regulation, although there was no evidence on to what extent the community interested itself in matters of parking detail.

90. In regard to Principle 3 above, two issues arise. First, is the applicants approach to identify points of “conflict” between the DCP and the AS and to argue weight be given to AS. While it is clear that the AS is less onerous than the DCP on the question of turning paths, the AS was not unequivocal in its support for 3-point turn movements and, in involving four-point turns, it was not clear that the application “complied” with the AS in any event (with some of the applicant’s traffic evidence misinterpreting the AS documentary content). There was also the documentary evidence to support weight going towards the DCP over the AS in any event.

91. Second, is in regard to Mr Palmer’s submissions about affordable housing. One inference being that the proposal had the potential to help achieve the particular “affordable housing” object of the EPA Act, but also Council’s own affordable housing policy aims. On this I note Mr Tomasetti’s point that the proposal has already received an FSR bonus for its affordable housing component under SEPP - ARH. It seems reasonable to adopt a position that (short further concessions under this or another instrument) a proposal be required to still achieve other planning parameters, such as parking, where such bonuses are adopted.

92. I have some interest in the point that this higher density housing can assist affordable housing more generally, including the reference in the Council minute [82] supporting affordable housing in the local government area. However, this minute was only raised in final submissions and not subject to sufficient examination, nor was there any planning evidence to support this proposal as supporting affordable housing beyond the SEPP – ARH aspects.

93. My conclusion in regard to Principle 3 is that there are insufficient particulars in the evidence to provide what might be “cogent reasons” to find that the DCP parking controls prompt “an inappropriate planning solution”.

94. Principles 2 and 4 above are concerned with the significant issue of consistency in the application of DCPs. Again there was no evidence provided to suggest that Council had been inconsistent in the application of the DCP parking provisions.

95. To conclude, the Council’s DCP sets a certain standard for parking which has not been met by the application. The non-compliance is in my view significant, with the basement carparking area, as proposed, providing constrained rather “readily accessible” parking (as intended by the DCP), with adverse consequences for future residents and flow-on effects for on-street parking street. Zhang points to the need for DCPs to be considered as a “fundamental element” in, or “focal point” to, the DA evaluation process, but that non-compliance does not automatically mandate a refusal. I have considered the guidance from Stockland on the proper way to apply the DCP in this instance and find that there was insufficient substantiation to suggest that conformance with the DCP’s parking access provisions not be required. I have also considered this DCP non-compliance in the context of the wider requirements of s 4.15(1) of the EPA Act, and find that the application does not warrant approval in the circumstances.

Orders

96. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. LDA2017/0167 for a residential flat building at 6 Lexcen Place Marsfield is refused.

3. The exhibits are returned with the exception of Exhibits A, 3 and 6.

___________

P Walsh

Commissioner of the Court

Decision last updated: 05 September 2018