Zhang v Council of the City of Ryde

[2016] NSWLEC 1179

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zhang and anor v Council of the City of Ryde [2016] NSWLEC 1179
Hearing dates:	11 April 2016
Date of orders:	18 May 2016
Decision date:	18 May 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. Development Application No. LDA/2015/0193 for the demolition of all existing improvements and the construction of an in-fill affordable housing development at 492 Blaxland Road, Denistone is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of 1 and A.
Catchwords:	DEVELOPMENT APPLICATION: demolition of all existing improvements and the construction of a four dwelling in-fill affordable housing development – whether site located in “accessible area” – whether compatible with the character of the local area - whether cl 4.6 written objection to height and density acceptable
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ryde Local Environmental Plan 2014 State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Category:	Principal judgment
Parties:	John Zhang (First Applicant) Dan Wang (Second Applicant)   Council of the City of Ryde (Respondent)
Representation:	Counsel: Mr G McKee, solicitor (Applicants) Ms F Bergland, barrister (Respondent)   Solicitors: McKees Legal Solutions (Applicants) Council of the City of Ryde (Respondent)
File Number(s):	10942 of 2015
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal relates to an appeal against the deemed refusal of Development Application No. LDA/2015/0193 for the demolition of all existing improvements and the construction of an in-fill affordable housing development at 492 Blaxland Road, Denistone (the site). The proposal provides for a part single storey, part room in the roof and part two storey development containing four dwellings.

2. The council maintains that the proposed development must be refused as the development is:

• not in-fill affordable housing consistent with provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP Affordable Housing) in that the site is not in an “accessible area” pursuant to cl 4(1)(c),

• breaches the height development standard in cl 4.3 of Ryde Local Environmental Plan 2014 (LEP 2014) and the written request to vary the height standard under cl 4.6 is not supported,

• breaches the density development standard in cl 4.5A of LEP 2014 and the written request to vary the density standard under cl 4.6 is not supported, and

• incompatible with the character of the local area, pursuant to cl 30A of SEPP Affordable Housing

3. If the development is not refused for the reasons above, then development consent ought be refused because the development is:

• unacceptable because of streetscape impacts, scale, character, density, built form, building mass, inadequate front and rear setbacks, building heights, excessive cut and fill compared to other developments, and

• inconsistent with the zone objectives.

The site

4. The site is Lot 36, Sec 4 in DP 7997. It is rectangular in shape with a total area of 1,011.7 sq m with a frontage to Blaxland Road of 20.12 m, a rear boundary of 20.12m and side boundaries of 50.30m. The site has a steady cross-fall of 3.51 m from a height of approximately RL 97.75 at the rear north-western corner to a height of approximately. RL 94.24 in the front south-eastern corner.

5. The site contains a brick single storey dwelling house with a tiled roof and detached fibro shed/garage with access from Blaxland Road.

6. The surrounding area is characterised by detached dwelling houses and multi-dwelling housing development. Immediately adjoining the site to the south at 490 Blaxland Road is a single storey dwelling, to the north at 494 Blaxland Road is a single storey dwelling house, to the east on the opposite side of Blaxland Road are a series of single storey dwelling houses located at 537 to 531 Blaxland Road and to the west at 44 Denistone Road is a single storey dwelling house used as a doctors surgery. At 46 Denistone Road is a two-storey dwelling house and at 48 Denistone Road is a single storey multi dwelling house development containing three dwellings.

Relevant planning controls

7. The site is currently within Zone R2 Low Density Residential under Ryde Local Environmental Plan 2014 (LEP 2014), which was gazetted on 12 September 2014. Multi-dwelling housing is a permissible use in this zone. The objectives of the R2 zone 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.

• To provide for a variety of housing types.

8. Clause 2.3(2) states that the Court must have regard to the zone objectives when determining a development application.

9. Clause 4.3 addresses Height and cl 4.3(2) states that the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. The site has a height of 9.5 m. Clause 4.3A(2) states despite cl 4.3, the maximum height of a dual occupancy (attached) and a multi dwelling housing on land in Zone R2 Low Density Residential is 5 m for any dwelling that does not have a road frontage.

10. Clause 4.3 addresses Floor Space Ratio (FSR) and cl 4.3(2) states that the maximum FSR for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. The site has an FSR of 0.5:1. The proposed development has an FSR of 0.43:1 and as such satisfies cl 4.3(2).

11. Clause 4.5A provides density controls specifically for Zone R2 by way of a ratio of the number of dwellings (based on the number of bedrooms) to site area. The relevant parts of cl 4.5A are:

4.5A Density controls for Zone R2 Low Density Residential

(1) The consent authority must not consent to the erection of multi dwelling housing (attached) on land in Zone R2 Low Density Residential unless:

(a) the site area for the building is not less than:

(i) for each 1, 2 or 3 bedroom dwelling—300 square metres, and

(ii) for each 4 or more —365 square metres, and

(b) each dwelling will have its own contiguous private open space.

12. Ryde Development Control Plan 2014 (DCP 2014) came into effect with LEP 2014 and provides controls for multi-unit housing at pt 3.4.

13. SEPP Affordable Housing applies. Clause 8 states:

8 Relationship with other environmental planning instruments

If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

14. Clause14(2) relevantly states:

(2)GeneralA consent authority must not refuse consent to development to which this Division applies on any of the following grounds:

(a)

(b)dwelling-sizeif each dwelling has a gross floor area of at least:

(i) 35 square metres in the case of a bedsitter or studio, or

(ii) 50 square metres in the case of a dwelling having 1 bedroom, or

(iii) 70 square metres in the case of a dwelling having 2 bedrooms, or

(iv) 95 square metres in the case of a dwelling having 3 or more bedrooms.

(3) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (1) or (2)

15. Clause 15(1) states :

15 Design requirements

(1) A consent authority must not consent to development to which this Division applies unless it has taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that those provisions are consistent with this Policy.

16. Clause 30A states:

30A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

Is the site within an “accessible area”?

17. Clause 10 states:

Division 1 In-fill affordable housing

10 Development to which Division applies

(1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if:

(a) the development concerned is permitted with consent under another environmental planning instrument, and

(b) the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977.

(2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area.

18. Clause 4 relevantly states:

4 Interpretation—general

(1) In this Policy:

accessible area means land that is within:

(a)

(b)

(c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday.

The evidence

19. Expert town planning evidence was provided by Mr Andrew Minto for the applicant and Mr Ben Tesoriero for the council. Mr Minto and Mr Tesoriero agree that two bus stops are located within 400 m of the site (Bus Stop No 2114147 and Bus Stop No 2122102). The two bus stops are located opposite each other on Blaxland Road and are served by Routes 515 and X15. The 515 service operates to and from Sydney daily from both bus stops while the X15 service operates to Sydney on Monday to Friday during the afternoon peak period.

20. The issue between Mr Minto and Mr Tesoriero centres on the Sunday service where Mr Tesoriero maintains that the bus service did not satisfy the “one bus per hour servicing the bus stop” standards in cl 4(1)(c) based on the Transport for NSW timetable. This was rejected by Mr Minto if the clause was given a purposive approach rather than the strict approach adopted by Mr Tesoriero.

Findings

21. In reviewing the Transport for NSW timetable, I have formed the view that a small amount of common sense needs to applied in this case. For Sunday and Bus Stop No 2122102, the service is at least hourly with the exception of the service between 08.52 and 09.53 (1 hour 1 minute). For Bus Stop No 2114147, the services are also at least hourly with the exception of the services between 08.16 and 09.19 (1 hour 3 minutes) and 12.12 and 13.14 (1 hour 2 minutes). In my view, it would be totally unreasonable to refuse the application on the basis of these three exceedances for two different services on a Sunday where the maximum exceedance is 3 minutes particularly given the practical uncertainty of a bus arriving exactly at the time set out in the timetable.

22. I also do not accept Mr Tesoriero’s approach that a proper reading of the words “...one bus per hour servicing the bus stop..” in cl 4(1)(c) means that each of the two bus stops must at all times receive a service within 60 minutes of the prior service.

23. I am satisfied that the site is within an “accessible area” for the purposes of cl 10(2).

Compatible with the character of the area?

24. Clause 30A is a condition precedent to the granting of consent. Clause 30A requires the Court to make a finding on “whether the design of the development is compatible with the character of the local area”. A positive finding enlivens the power to consider the merits of the application and a negative finding must see the application refused and the appeal dismissed.

25. The character test requires consideration of the following matters:

• what is the "local area"?

• what is the character of the "local area"?

• is the design of the proposed development compatible with the character of the "local area"?

What is the "local area"?

26. The experts accept the approach in Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 where“ local area” is described as:

….principally the visual catchment in which the development will be viewed…. The wider catchment is also relevant….

27. Mr Minto and Mr Tesoriero agree that the “local area” for the purposes of cl 30A as being the visual catchment in which the development will be viewed. A map (Figure 3), to their report identifies the maximum area for considering the existing and future character of that locality.

What is the character of the "local area"?

28. As I understand, it was accepted that the “local area” was predominantly single storey residential development but with other multi dwelling housing development that have a maximum dwelling density of three dwellings per allotment, aside from an approved multi dwelling house development at 496 Blaxland Road which has four dwellings.

Is the design of the proposed development compatible with the character of the "local area"?

29. Mr Minto and Mr Tesoriero agree that this question requires two questions to be answered (Project Venture Developments Pty Ltd v Pittwater Council[2005] NSWLEC 191, at [24]) being:

• are the proposal’s physical impacts on surrounding developments acceptable?, and

• is the proposal’s appearance in harmony with the buildings around it and the character of the street?

30. The experts agreed that the word "compatible" had the meaning attributed to it within Project Venture [at 22] as being “capable of existing together in harmony”.

The evidence

31. On the first question, Mr Tesoriero states that the proposal fails to comply with a number of development standards and planning controls which seek to ensure multi dwelling housing development in the R2 Low Density zone does not pose an unacceptable impact on adjoining development. For the proposed development, the following non-compliances with the relevant development standards and planning controls are identified when having regard to the visual impact of the buildings proposed:

• building height,

• number of storeys,

• dwelling density,

• front setback,

• side setback.

• rear setback, and

• non-preferred location for multi dwelling housing development.

32. The cumulative impact of the aforementioned non-compliances with the LEP 2014, DCP 2014, and also Senior Living Policy; Urban Design Guidelines for Infill Development is considered to result in a development that poses an unacceptable visual impact on adjoining properties and the streetscape.

33. On the second question, Mr Tesoriero states that the that the relationship of built form to the surrounding space created by building height, setbacks and landscaping is significant to the creation of urban character. Given this, it is considered that the proposed development is inconsistent with the appearance of current and future buildings around it and the character of the street. This is because a character assessment of the local area has identified that the vast majority of buildings in the local area are single storey in height only, or where little evidence of two storey development is identified, such buildings largely take on the appearance of a single storey development to the street.

34. Further, and given DCP 2014 identifies the site as a non-preferred location for multi dwelling housing, and also given LEP 2014 limits the height of rear multi dwelling housing development dwellings to single storey, Mr Tesoriero states that a two-storey multi dwelling housing will not be part of the future character of the area.

35. The effect of these non-compliances with the current planning controls is the introduction of a largely foreign built element to the Blaxland Road streetscape which poorly varies the rhythm of development in the local area.

36. Mr Minto states that under the R2 zone, a range of land uses are permissible with the consent of the council including dwelling houses, dual occupancy (attached) and multi-dwelling housing. As a consequence the area surrounding the site comprises of a range of built forms ranging from one and two storey detached dwelling houses, two storey attached dual occupancy development and villa and townhouse development. The current council controls, as well as the State Environmental Planning Policy (Exempt and Complying Development Codes) 2007 would permit the demolition of the existing dwelling on the site and adjoining sites and the construction of a new dwelling having a height of 9.5m and 2 storeys.

37. Mr Minto states that the proposal provides for an outcome which would be consistent with both the existing character of the local area as well as with the desired future character envisaged by the council through its existing controls.

38. On this basis, the proposed multi-dwelling housing development represents development compatible with the character of the local area.

39. In addition to the above Mr Minto states that the design of the development is compatible with the character of the local area for the following reasons:

• the proposal is provided with front, side and rear setbacks consistent with the surrounding and adjoining development,

• the proposal provides for a two storey dwelling with a conventional pitched roof form fronting Blaxland Road and which is reflective of surrounding development,

• the proposal provides for a landscape outcome commensurate with the requirements of the council,

• the proposal is to incorporate colours and materials reflective of surrounding development, and

• the proposal provides for the provision of significant replenishment vegetation in order to maintain the landscape character of the locality.

40. For these reasons, the proposal will provide for a development outcome which is compatible with the character of the area and satisfies the test applicable under cl 16A.

Findings

41. The significant difference in the approaches of Mr Minto and Mr Tesoriero is the form of development that should be considered in determining the “character of the local area”. Even though the existing character is predominantly single storey residential, I do not accept that it is reasonable to base any assessment of character solely on this form of development given that the council’s planning controls anticipate a 2 storey residential dwelling form. In my view, it would be difficult, if not impossible to reject a development application for a 2 storey dwelling because the character of the area was predominantly single storey. The same approach would apply to the proposed development.

42. This approach is consistent with the Rule of Thumb in cl 3 Impacts on Streetscape in Seniors Living Policy: Urban Design Guidelines for Infill Development where it states:

Respond to council planning instruments that specify the character or desired character for the area

43. In my view, Mr Tesoriero overstates his concerns about the impact on the character of the local area. Clause 2.0 of Pt 3.3 of DCP 2014 helpfully provides the Desired Future Character anticipated for single dwellings and attached dual occupancies where it states:

2.0 GENERALS CONTROLS

2.1 Desired Future Character

The desired future character of dwelling houses refers to the complete building, whether this is the result of the construction of a completely new house, or of an addition or alteration to an existing house.

The desired future character of the low density residential areas of the City of Ryde is one that:

Has a low scale determined by a maximum 2 storey height limit;

Has a low density with free-standing dwellings;

Has a limited number of dual occupancy (attached) buildings, and these buildings look similar to detached dwellings;

Has dwellings located in a landscape setting which includes a clearly defined front garden and back yard;

Has buildings which are well designed and have a high degree of amenity;

Has streetscapes made up of compatible buildings with regard to form, scale, proportions (including wall plate heights) and materials;

Has streetscapes with dwellings that have a generally consistent front setback and consistent street orientation;

Has garages and other structures which are not prominent elements in the streetscape and which are compatible with the character of the dwelling;

Requires minimal disturbance to the natural topography, which means that excavation is to be minimised;

Has backyards, which are maximised in size;

Has backyards which form a connected strip of vegetation in neighbourhoods and which include large trees;

Has allotments with large deep soil areas which allow rainwater to be absorbed and trees to be planted;

Has mature trees in streets, front gardens and backyards (existing mature trees are retained and new tree plantings encouraged); and

Has character areas where special features are retained and enhanced.

44. Based on DCP 2014, a new single dwelling could be constructed on the site based on the following principal controls:

• a maximum of two storeys high (cl 2.2.1,Control b),

• a floor space ratio must not be greater than 0.5:1 (cl 2.7.1, Control a)

• a maximum building height of 9.5 m (cl 2.8.1),

• a setback generally of 6 m from the street front boundary. (cl 2.9.1,Control a),

• the outside walls of a two storey dwelling are to be set back from side boundaries not less than 1.5 m. (cl 2.9.2,Control b),

• the rear of the dwelling is to be set back from the rear boundary a minimum distance of 25% of the length of the site or 8 m, whichever is the greater (cl 2.9.3,Control a), and

• attic dormer windows can be provided (subject to the controls in cl 2.15.2).

45. If the proposed development is compared to the form of development anticipated for a new dwelling, I have little trouble in concluding that the presence of the proposed development in the local area and in the streetscape is compatible with the Desired Future Character because the proposed development :

• has a “scale determined by a maximum 2 storey height limit”,

• is “located in a landscape setting ….”,

• “has buildings which are well designed and have a high degree of amenity”,

• “has streetscapes made up of compatible buildings with regard to form, scale, proportions (including wall plate heights) and materials”,

• “has streetscapes with dwellings that have a generally consistent front setback and consistent street orientation” and

• “has garages and other structures which are not prominent elements in the streetscape and which are compatible with the character of the dwelling”.

46. I am satisfied that the proposed development acceptably addresses the principal design elements that make up the Desired Future Character for a dwelling or an attached dual occupancy such that it is “"compatible with the character of the local area”, including the streetscape. Where there are departures, as identified by Mr Tesoriero, those departures, in my view, do not impact on the proposed development being seen as being compatible with the character of the local area. Under any reasonable assessment the proposed development could not be seen as a “largely foreign built element to the Blaxland Road streetscape which poorly varies the rhythm of development in the local area”.

47. Similarly, I do not accept that the proposed development will have an unacceptable visual impact on adjoining properties and the streetscape, will be inconsistent with the appearance of current and future buildings around it and the character of the street. The fact that the vast majority of buildings in the local area are single storey does not mean that this is the benchmark for determining what is the future character of the area - this a matter best determined by the form of development contemplated by the council planning controls.

48. I have given no weight to the provisions of s 2.3 Non-Preferred Locations of Pt 3.4 of DCP 2014 for two reasons. First, the clause effectively seeks to prohibit a development that is permissible under LEP 2013 (notwithstanding the use of the words “non-preferred”) and secondly, the “non-preferred” location is based on “adverse traffic impacts and adverse impact/change to the character of the local area” although no traffic issues were raised by the council. The issue of impact/change to the character of the local area was a significant matter in the proceedings and was addressed as a separate issue earlier in the judgment and found to be acceptable.

49. For these reasons, the proposed development is "compatible with the character of the local area”, including the streetscape.

The height development standard

50. Clause 4.3 addresses Height and cl 4.3(2) states that the height of a building on any land is not to exceed the maximum height shown of 9.5 m. Clause 4.3A(2) also applies and notwithstanding cl 4.3(2), the maximum height of a multi dwelling housing is 5 m for any dwelling that does not have a road frontage.

The requirements

51. Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly state:

4.6   Exceptions to development standards

(1)  The objectives of this clause are as follows:

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless:

(a)  the consent authority is satisfied that:

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

The extent of the breach of the height standard

52. There was an agreement by Mr Minto and Mr Tesoriero that the breach of the 5 m height standard for the Revision E plans relates to Dwellings 2 and 3 where the maximum building heights are 6.37 m and 6.17 m respectively. Dwelling 1 satisfies the 9.5 m height standard and Dwelling 4 satisfies the 5 m standard.

The written request

53. Mr Minto prepared a written objection under cl 4.6 of LEP 2014 to show why the variation to the height standard is acceptable. He states that that strict compliance with the standard is unnecessary in the circumstances of this case because:

• the proposal provides for a room in roof design for Dwellings 2 and 3 which effectively reduces the perceived height and bulk of these two dwellings,

• the proposed dwellings are considered to occupy the building zone for the site within which a conventional two storey dwelling having a permissible height of up to 9.5m would otherwise be expected to be located,

• the proposal will not result in any unreasonable impacts upon the adjoining properties as a result of its height, particularly in relation to overlooking or overshadowing,

• the proposal provides for a development outcome which is compatible with a low density residential environment and the surrounding locality, and

• the proposed departure is necessary to facilitate the provision of an additional dwelling house upon the site and which will be dedicated as affordable rental housing for a period of 10 years.

54. Mr Minto states that there are sufficient environmental planning grounds to justify contravening the development standard. These are:

• compliance would prevent the ability to provide for an additional dwelling house upon the site and which will be dedicated as affordable rental housing for a period of 10 years,

• there is a significant public and social benefit arising from the provision of an affordable dwelling,

• the non-compliance will not result in any unreasonable impacts upon the public domain, and

• the proposal is otherwise compliant with the objectives in relation to the height of buildings.

55. In relation to the objectives of the R2 zone, Mr Minto states that the proposal provides for:

• the housing needs of the community through the provision of three conventional dwellings and one affordable dwelling within a low density residential environment, and

• a variety of housing types through the provision of 1 x 3 bedroom dwelling (two storey), 2 x 2 bedroom dwellings (attic style) and 1 x 2 bedroom dwelling (single storey).

56. In relation to the relevant height objectives Mr Minto states that the proposal:

• does not result in any unreasonable overshadowing of adjoining properties,

• provides for a development which is compatible with the character of the locality, and

• will not unreasonably impact upon the amenity of the adjoining properties.

The council’s response

57. Mr Tesoriero states that he does not support the written request for the variation to the height standard because:

• the second storey is not considered to be a “room in roof” design that reduces the perceived height. Dwelling 2 and Dwelling 3 are located within an exaggerated roof space that has a greater vertical height than the wall plate of the dwellings themselves. The reason why the dormer windows may appear minor is because they have been housed within a roof space that is disproportionally large,

• the proposal is not considered to occupy the building zone that would otherwise be occupied by a compliant 9.5m high dwelling house because a compliant dwelling house would be required to have a larger setback from the street and rear boundary,

• the non-compliant height of the building, along with the setback non-compliances will result in a built form outcome that will present a significant visual impact on adjoining property and is not considered to be compatible with the current and future low density residential character of the local area,

• the proposed departure from the building height standards is not considered to be necessary to facilitate the provision of an additional dwelling house on the site under SEPP Affordable Housing,

• the proposal has been assessed as failing to satisfy all of the relevant objectives of the R2 zone,

• it has not demonstrated that the height development standard has been virtually abandoned or destroyed and that the zoning of the land is unreasonable or inappropriate, and

• it has not been explained how the proposed development achieves compliance with the height objectives.

58. For these reasons, Mr Tesoriero states that the written request has failed to demonstrate that compliance with the building height development standard is unreasonable or unnecessary in the circumstances of the case. Further it has not been demonstrated there are satisfactory environmental planning grounds to justify contravention of the building height development standard.

The assessment framework

59. Clause 4.6 of LEP 2012 imposes three preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to be satisfied that the written request demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). This precondition also requires the Court to be satisfied that the written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

60. In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]:

The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.

61. A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

The zone objectives

62. The R2 zone objectives 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.

• To provide for a variety of housing types.

63. The zone objectives are broad and do not specifically relate to the matter of whether the height standard should be varied. I accept that the development could be seen as providing “the housing needs of the community within a low density residential environment” although the words “low density residential environment” are not defined in LEP 2014. Similarly, it could not be reasonably argued that the proposed development does not “provide for a variety of housing types”. The consideration of the development (as distinct from the height) with the zone objectives is a matter required by cl 2.3(2).

64. I accept that the proposed development is consistent with the relevant zone objectives.

The height standard objectives

65. The height standard objectives in cl 4.3(1) are:

(a) to ensure that street frontages of development are in proportion with and in keeping with the character of nearby development,

(b) to minimise overshadowing and to ensure that development is generally compatible with or improves the appearance of the area,

(c) to encourage a consolidation pattern and sustainable integrated land use and transport development around key public transport infrastructure,

(d) to minimise the impact of development on the amenity of surrounding properties,

(e) to emphasise road frontages along road corridors.

66. Objectives (a), (c) and (e) are not relevant given that they do not relate to the issue of height associated with the proposed development.

Objective (b) - to minimise overshadowing and to ensure that development is generally compatible with or improves the appearance of the area,

67. It was agreed that there were no overshadowing impacts. The impact of the development on the appearance of the area is addressed in detail as a separate matter earlier in the judgment where it was found that the proposed development is “compatible with the character of the local area”, including the streetscape.

68. I am satisfied the proposed development is consistent with height objective (b).

Objective (d) - to minimise the impact of development on the amenity of surrounding properties,

69. No amenity impacts on surrounding properties were identified beyond what Mr Tesoriero described as “a significant visual impact on adjoining property”. I do not consider this to be a reasonable description of the visual impact of the property from surrounding properties.

70. I am satisfied the proposed development is consistent with height objective (d).

Is compliance with the development standard is unreasonable or unnecessary in the circumstances of the case?

71. I am satisfied that compliance with the development standard is unnecessary in the circumstances of the case although I do accept that the proposed departure is necessary to facilitate the provision of an additional dwelling house on the site.

Are there sufficient environmental planning grounds to justify contravening the development standard?

72. I am satisfied that there are there sufficient environmental planning grounds to justify contravening the development standard although again I do accept that the proposed departure is necessary to facilitate the provision of an additional dwelling house on the site..

73. In response to the evidence of Mr Tesoriero, I would add that I do not accept that :

• the proposal would not occupy the building zone that would otherwise be occupied by a compliant 9.5m high dwelling house,

• the built form outcome that will present a significant visual impact on the adjoining property, and

• there is no need to establish that the height development standard has been virtually abandoned or destroyed or that the zoning of the site is unreasonable or inappropriate.

The density development standard

74. Clause 4.5A provides density controls for Zone R2 Low Density Residential for the erection of multi dwelling housing (attached). For each 1 or 2 or 3 bedroom dwelling, there must be 300 sq m of site area.

The extent of the breach of the density standard

75. The site has a total area of 1,011.7 sq m and for a 1 or 2 or 3 bedroom dwelling (at 300 sq m of site area per dwelling) only 3 dwellings may be granted consent without the cl 4.6 written request. A site of 1,011.7 sq m calculates at 3.37, 1 or 2 or 3 bedroom dwellings.

The written request

76. Mr Minto prepared a written request under cl 4.6 0f LEP 2011 to show why the variation to the density standard is acceptable. He states that that strict compliance with the standard is unreasonable and unnecessary in the circumstances of this case because:

• the proposal will not result in any unreasonable impacts upon the adjoining properties as a result of its density noting that under council's controls, a 4 bedroom dwelling and 2 x 3 bedroom dwellings could be constructed upon the site. Such compliant development would therefore result in a total of 10 bedrooms being provided upon the site. The proposal provides for a total of 9 bedrooms which is less than the potential maximum number of bedrooms resulting from a compliant development,

• the proposal provides for a development outcome which is compatible with a low density residential environment and the surrounding locality,

• the proposed departure is necessary to facilitate the provision of an additional dwelling house upon the site and which will be dedicated as affordable rental housing for a period of 10 years in accordance with SEPP Affordable Housing. In this regard a compliant development of 3 dwellings would not be burdened with the requirement to provide for an affordable rental dwelling, and

• there is considerable public benefit in the provision of an affordable dwelling and on this basis, strict compliance with the standard is unreasonable and unnecessary in the circumstances of this case.

77. Mr Minto states that the environmental planning grounds that support the variation to the density are:

• it would prevent the ability to provide for an additional dwelling house upon the site and which will be dedicated as affordable rental housing for a period of 10 years in accordance with SEPP Affordable Housing,

• the non-compliance will not result in any unreasonable impacts upon adjoining properties,

• the non-compliance will not result in any unreasonable impacts upon the public domain, and

• the proposal is otherwise compliant with the objectives of the council for a low density residential zone.

78. Mr Minto further states that the proposed development is in the public interest because it is compliant with the zone objectives and provides for a built form which is compatible with the surrounding locality.

79. The written request concludes by stating that the proposed development is in the public interest because it is compliant with the zone objectives and provides for a built form which is compatible with the surrounding locality

The council’s response

80. Mr Tesoriero states that he does not support the written request for the variation to the density standard because:

• any residential development on the site could present a built form outcome that does not result in any unreasonable impacts on adjoining property or the public domain,

• the proposal is not considered to be compatible with the current and future low density residential character of the local area;

• it is acknowledged a departure the density development standards is being pursued to facilitate the provision of an additional dwelling house on the site under SEPP Affordable Housing. However, in the circumstances of the case, the contravention of the density standard is not supported in conjunction with the applicant's request for a variation to the building height standard for two of the dwellings within the proposed development. A revised design could reduce the number of bedrooms within one or more of the dwellings then concurrently reduce the scale of the development and reduce Dwelling 2 and 3 to single storey only.

• the proposal fails to satisfy all of the relevant objectives of the R2 zone;

• the applicant has not demonstrated that the development standard under the LEP 2014 has been virtually abandoned or destroyed by council's own actions in departing from the standard;

• the applicant has not demonstrated that the zoning of the land is unreasonable or inappropriate.

81. Given the above, Mr Tesoriero concludes that the written request has failed to demonstrate that compliance with the density development standard is unreasonable or unnecessary in the circumstances of the case. Further it has not been demonstrated there are satisfactory environmental planning grounds to justify contravention of the density development standard

The zone objectives

82. The R2 zone objectives 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.

• To provide for a variety of housing types.

83. The zone objectives are broad and do not specifically relate to the matter of whether the density standard should be varied. I accept that the development could be seen as providing “the housing needs of the community within a low density residential environment” although the words “low density residential environment” are not defined in LEP 2014. The consideration of the development (as distinct from the density) with the zone objectives is a matter required by cl 2.3(2).

84. I accept that the proposed development is consistent with the relevant zone objectives.

The density standard objectives

85. LEP 2010 contains no specific objectives for the density standards in cl 4.5 however some guidance can be obtained from cl 2.5 of DCP 2014 where density is addressed and where the following objectives are included:

2.5 Density

Objectives

To create a balanced relationship between the site area, dwelling size and residential population living on the site.

To ensure the highest aesthetic Multi dwelling housing developments possible.

86. In the absence of any objectives for density in LEP 2014, Mr Minto and Mr Tesoriero make no specific comment. If the objective in cl 2.5 is considered, I am not sure that the objective seeking “a balanced relationship between the site area, dwelling size and residential population living on the site” provides any help in establishing a relevant objective for density. If this objective and the development standard are considered together; there is a clear conflict as the objective seeks a balance between the site area, the dwelling size and the expected residential population whereas the cl 4.5A standards provide the same density (as a ratio of the site area) for a 1 bedroom dwelling as it does for a 2 bedroom dwelling and even a 3 bedroom dwelling. It could not be said that this somehow creates a balance between site area and dwelling size and particularly the number of people likely to reside on the site given that there will undoubtedly be a greater number of people living in a 3 bedroom dwelling than in a 2 bedroom dwelling and more people living in a 2 bedroom dwelling than in a 1 bedroom dwelling.

87. As the evidence of Mr Minto and Mr Tesoriero focusses on the form of the building and its relationship with the character of the area and the streetscape, I reiterate that the impact of the development on the character of the area and the streetscape are addressed in detail as a separate matter where it was found that the proposed development is “compatible with the character of the local area”, including the streetscape.

Is compliance with the development standard is unreasonable or unnecessary in the circumstances of the case?

88. I am satisfied that compliance with the development standard is unnecessary in the circumstances of the case although I do accept that the proposed departure is necessary to facilitate the provision of an additional dwelling house on the site.

Are there sufficient environmental planning grounds to justify contravening the development standard?

89. I am satisfied that there are there sufficient environmental planning grounds to justify contravening the development standard although I do accept that the proposed departure is necessary to facilitate the provision of an additional dwelling house on the site.

90. The other matters raised by the council in relation to streetscape impacts, scale, character, density, built form, building mass, inadequate front and rear setbacks, building heights, excessive cut and fill compared to other developments, and inconsistency with the zone objectives have been discussed in the matters of character and streetscape and were not matters that would warrant the refusal of the application.

91. Pursuant to cl 2.3(2) and after having regard to the zone objectives; there is no matter that would warrant the refusal of the application.

Orders

92. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. LDA/2015/0193 for the demolition of all existing improvements and the construction of an in-fill affordable housing development at 492 Blaxland Road, Denistone is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of 1 and A.

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G T Brown

Commissioner of the Court

10942_of_2015.(C) gbt (367 KB, pdf)

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Decision last updated: 18 May 2016