AG Kellyville Pty Ltd v The Hills Shire Council

Judgment (3 paragraphs)

[1]

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application 1666/2016/HB/D (the proposal) to modify Development Consent No. 1666/2016/HB (as modified) granted by the Respondent on 22 August 2017 for the construction of 2 x 3 storey residential flat buildings (RFBs) at Lot 11 Nightcap Road, North Kellyville (the site) by The Hills Shire Council (the Council). The proposal is summarised below at [15].
The appeal was subject to conciliation on 9 December 2019, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.
The parties agreed to the hearing being conducted over the telephone following the Court's "COVID-19 Pandemic Arrangements Policy" announced by the Court on 22 March 2020 and published on the Court's website on 24 March 2020. The parties agreed to the applicant filing an Expert Report (Ex B) containing photographs and maps of the locality. I advised the parties during the hearing over the telephone that I have been to Nightcap Road, North Kellyville recently for the purpose of a s 34 conciliation conference in relation to another matter. The parties each filed written submissions prior to the hearing over the telephone.
Leave was unopposed and granted by the Court at the commencement of the hearing for the applicant to amend the application by relying on an amended proposal (Ex A), which reflected amendments to the proposal agreed to by planning and urban design experts in their joint report (Ex 4). Issues

Density

The applicant submitted that the DCP 2018 is essentially the 2008 DCP with some minor amendments. DCP 2018 does not reflect the Precinct Plan provisions because DCP 2018 refers to "density target bands" at section 2.4 and the Precinct Plan only contains a minimum density requirement at cl 4.1B. The applicant submitted that to the extent that the residential density provisions in DCP 2018 are inconsistent with cl 4.1B, those provisions have no effect, pursuant to s 3.43(5)(b) of the EPA Act.
The Council submitted that there is no inconsistency between the Precinct Plan and DCP 2018. DCP 2018 dictates the form and character of development for the R1 zone with a minimum target of 12.5 dwellings/ha.
The Precinct Plan does not include a floor space ratio (FSR) development standard for the site (North West Growth Centre Floor Space Ratio Map - Sheet FSR_012 of SEPP Growth Centres).
An amending SEPP, that included the introduction of density bands for the SEPP Growth Centres and proposed to set a minimum of 15 dwellings/ha and a maximum of 35 dwellings/ha for an area including the site, was exhibited during 2017. The parties agreed that the Draft amendment to SEPP Growth Centres has effectively been abandoned and that the amendments to the SEPP are neither certain nor imminent (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 at [5]).
According to Mr Milinkovic, the approved development on the site represents a density of 114.9 dwellings per hectare (ha) and the proposal increases the density to 120.84/ha. Mr Milinkovic noted that the approved development is well above the proposed maximum density band under the Draft amending SEPP.
Mr Milinkovic's calculation is based on the site's area of 3393sqm. "Net developable area" is defined at cl 2.4 of the Precinct Plan as follows: "Net developable area means the land occupied by the development, including internal streets plus half the width of any adjoining access roads that provide vehicular access, but excluding land that is not zoned for residential purposes."
"Net Residential Density" referred to in section 2.4 of DCP 2018 includes the following explanation: "Net Residential Density means the net developable area in hectares of the land to which the development is situated divided by the number of dwellings proposed to be located on that land. Net Developable Area means the land occupied by the development, including internal streets plus half the width of any adjoining access roads that provide vehicular access, but excluding land that is not rezoned for residential purposes… Net Residential Density is an averaging statistic. The average dwelling density should be achieved across the identified area with a diversity of lot and housing types. However, this does not mean that all streets offer the same housing and lot mix. Built form intensity should vary across a neighbourhood in response to the place: more intense around centres or fronting parks, less intense in quieter back streets. In lower density areas, there will be a higher proportion of larger lots and suburban streetscapes but there may also be some streets with an urban character. In higher density areas, urban streets with more attached housing forms will be more common but there will also be some suburban streetscapes."
Both the Net Developable Area and Net Residential Density are based on, according to the definitions, land occupied by the development as well as internal streets and part of the access roads. In other words, a Net Residential Density is a broad brush strategic planning tool for determining yields for a particular residential zone. Net Residential Density is an "averaging statistic". Not only does Mr Milinkovic's calculation yield an inflated rate because it is confined to the site area; the residential density calculation is not helpful or applicable when considering an individual site for a residential flat building development because it depends on what proportion of the forecasted density is proposed to be accommodated on that individual site. This is evident in the text quoted above, "this does not mean that all streets offer the same housing and lot mix" and "Built form intensity should vary across a neighbourhood in response to the place". I also note that the only Net Residential Density rate in Table 5 of section 2.4 which includes residential flat buildings is 40+ dwellings/ha, which suggests that the 12.5 dwellings/ha minimum density target for the R1 zone in Table 4 is a conservative minimum for the total yield of a wide range of residential development permissible in the R1 zone.
I do not accept the applicant's submission that there is necessarily an inconsistency between section 2.4 of DCP 2018 and cl 4.1B of the Precinct Plan; instead I am of the view that this section of DCP 2018 cannot be usefully applied to an individual development site for a residential flat building because it is a strategic planning tool used at a broad scale to make predictions about yields and infrastructure. The density of individual developments is controlled by development standards for height and FSR in a Local Environment Plan (or Precinct Plan in this case) and corresponding building envelope controls in a development control plan. Development standards are presumably informed by broad brush strategic planning tools such as residential density targets.
I accept Mr Milinkovic's evidence that an increase of 2 units on this site is unlikely to result in unacceptable demands on existing, or planned, local services and infrastructure in the area. According to Mr Milinkovic, the proposal is inconsistent with objective 1(b) of cl 4.1B because the proposed two units will contribute to the cumulative effect of unacceptable and unplanned increase in density for the locality in general. I do not accept that objective 1(b), "to ensure that residential development makes efficient use of land and infrastructure and contributes to the availability of new housing," is contravened by the proposal.
I am satisfied that the proposal is consistent with the objectives at cl 4.1B of the Precinct Plan because I am satisfied that the scale of the proposal is compatible with the character of the precinct and adjoining land and I accept Mr Smith's opinion that the proposal provides a superior architectural response to the original modification proposal. Orders
The orders of the Court are: 1. The appeal is upheld. 2. Modification Application No. 1666/2016/HB/D to modify the approved development for two residential flat buildings at Lot 11 Nightcap Road, North Kellyville by adding access and a terrace to the rooftop level of Building A and two units to the rooftop level of Building B and other changes, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 1 and A, are returned.

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