Ajaka v Parramatta City Council [2013] NSWLEC 1019 | Case summary

The evidence 15The appeal commenced on site and evidence was heard from objectors who were principally concerned that the proposal was an overdevelopment of the site which would increase the number of people and cars and result in unacceptable impacts on privacy, noise, parking and traffic. They considered that the affordable housing development was not compatible with the character of the local area and would adversely impact on residential amenity. 16Expert town planning evidence was heard from Mr D Furlong, for the applicant, and Ms D Fernandez for the council. Is the development permissible? 17"Multi unit housing" and "residential flat buildings" are prohibited land uses in the 2A zone under LEP 2001 and in the R2 zone under LEP 2011. The applicant relies for permissibility on the provisions of Division 1 of Part 2 of SEPP ARH, and on the discretion conferred by cl 54A(2) of the Amending SEPP to determine the application under the provisions of SEPP ARH, subject to the application of cl 54A(3). 18The Council's position as identified in its Amended Statement of Facts and Contentions is that the proposed development is prohibited under LEP 2001 and LEP 2011. Further, the development application is not an "existing application" under cl 54A(2) of the Amending SEPP as Division 1 of Part 2 of SEPP ARH did not apply to the site before the Amending SEPP commenced. Therefore, the savings provision in cl 54A(2) does not apply and the development is not permissible as cl 10(1) of the Amending SEPP does not apply. 19This difference of positions centres on whether the development site is within the R2 zone under LEP 2011 or within the 2A zone under LEP 2001 and, if so, whether the 2A zone is a land use zone that is equivalent to the R2 zone under the Standard Instrument. 20Clause 10(1) of SEPP ARH relevantly provided: (1) This Division applies to a development site on land if the development site is within any of the following land use zones or within a land use zone that is equivalent to any of those zones, but only if development for the purposes of dwelling houses, multi-dwelling housing or residential flat buildings is permissible within the zone: (a) Zone R1 General Residential, (b) Zone R2 Low Density Residential, (c) Zone R3 Medium Density Residential, (d) Zone R4 High Density Residential. 21Clause 5 of SEPP ARH is relevant to the interpretation of clause 10. It provides: 5 Interpretation - references to equivalent land use zones (1) A reference in this Policy to a land use zone that is equivalent to a named land use zone is a reference to a land use zone under an environmental planning instrument that is not made as provided by s33A(2) of the Act: ....... (b) ... is a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone. (2) An assessment made by a relevant authority under sub-clause 1(b) applies only in respect of the particular development that is proposed to be carried out and more than one such assessment may be made in respect of the same land use zone. 22The expression "equivalent land uses" in clause 5(1)(b) is not otherwise defined. 23The four zones identified in cl 10(1) are zones taken from the "standard instrument" as defined in clause 4 of SEPP ARH. The standard instrument is contained within the Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument). Applicant's submissions 24The applicant submits that the application "should be determined, subject to the character test, as if the Amending SEPP had not been made". The applicant's primary submission is that cl 10 of SEPP ARH applies as the site is within the R2 zone under LEP 2011, which was imminent and certain when the development application was lodged and prior to the commencement of the Amending SEPP, therefore: the consent authority has the power to and should determine that due to the imminence and certainty of the draft LEP, that the R2 zone be given determining weight and therefore cl 10 is satisfied. 25The applicant's secondary submission is that the 2A zone under LEP 2001 is equivalent to the R2 zone under the Standard Instrument. The applicant cites the decision of Sheahan J in Chehade v Bankstown City Council [2012] NSWLEC 221 (Chehade) where at [40] His Honour stated that when assessing zone equivalence, it "involves a component of comparison, but also a component of value judgment." 26The applicant also referred to the decisions in Assaf v Parramatta City Council [2012] NSWLEC 1254 (Assaf) and Pingola Pty Ltd and Anor v Parramatta City Council [2012] NSWLEC 1270 (Pingola) where the Court concluded that the land uses in the 2A zone under LEP 2001 were not equivalent to those in the Standard Instrument. However, the applicant urges that a different assessment of equivalent uses be undertaken. He referred to the Department of Planning Practice Note (PN1-002) Preparing LEPs using the Standard Instrument: standard zones (Practice Note) which provides: In addition to the mandated uses, councils will need to determine for each zone whether to permit (with or without consent) or prohibit the other land uses. ...... In addition, where the permissibility of certain land uses is provided for under a relevant SEPP (eg Infrastructure SEPP), there is no need to include these types of development in Standard Instrument LEPs. 27On this basis, the Applicant submits that the uses that are permissible under the R2 zone should include permissible uses that are mandated in the Standard Instrument and those set out in various State Environmental Planning Policies, being: + State Environmental Planning Policy (Affordable Rental Housing) 2009 + State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 + State Environmental Planning Policy (Infrastructure) 2007 (I SEPP) + State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 28The applicant prepared the following comparison table. PERMISSIBLE USE COMPARISON LAND USE PLANNING INSTRUMENTS PLEP Standard VARIOUS SEPPs PLEP 2011 R2 2001 Instrument LEP 2(a) Zone MANDATED Bed and breakfast establishments · · · Complying Exempt & Complying SEPP Boarding houses · · · Car parking spaces · · Exempt (Exempt & Complying SEPP) Centre based child care centres · Community facilities · · Drainage (other than · · minor drainage Permissible without Consent works) (Clause 111 -I SEPP) Dual occupancies · · Dwelling Houses · · · · Exempt (Exempt & Complying SEPP) Educational Establishments · · · Permissible with Consent (Clause 28 - I SEPP) Granny Flats · · Permissible with Consent as Secondary Dwelling (SEPP - ARH) Group Home · · Home based child care centres · · · Exempt (Exempt & Complying SEPP) Home Business · · · · Permissible without Consent Exempt (Exempt & Complying SEPP) Hospitals · · Housing for older people or people with a disability · · · (Seniors housing) Permissible with Consent (SEPP - Seniors Living) Local /Neighbourhood · · Shops Medical Consulting Rooms (Health Consulting Rooms) · · Places of public worship · · Public buildings · · Public Utility Installations · · Permissible with Consent (Various Clauses-I SEPP) Public Transport Facilities · · Permissible with Consent (Various Clauses - 1 SEPP) Recreation Areas · · Permissible with Consent (Clauses 65(3) - I SEPP) · Recreation Facilities · · · Permissible with Consent (Clause 65(3)-I SEPP) Roads · · · Permissible with Consent (Clause 94-I SEPP) Telecommunication facilities · · Permissible with & without Consent (Division 21 - I SEPP) Demolition · Exempt (Exempt & Complying SEPP) · (See Clause 2.7) Subdivision · · · Exempt (with Restrictions) (See Clause & Complying (Strata Subdivision) 2.6) (Exempt & Complying SEPP) Total Permissible 26 4 17 20 Uses Total Permissible 26 21 20 Uses

29The applicant submits: The supplementary table provides that of the 26 permitted uses in the 2(a) zone under the PLEP 2001, 21 of those uses are permitted under the Standard LEP together with the above four SEPPs. The applicant submits that both the nature and the number of the uses must be compared by the Court: Assaf v Parramatta City Council [2012] NSWLEC 1254 at 25 & 39; Pingola Pty Ltd and Anor v Parramatta City Council [2012] NSWLEC 1270 at 24. Numerically, 21 out of a 26 possible uses is significant and may be described as comparable. The nature of uses are equivalent. For example the overwhelming dominant use of the zone in terms of area and likely future development applications relate to those of dwelling houses and create a low density residential character. The different uses that are arguably not equivalent are hospitals. Centre based child care centres and places of public worship are properly characterized as different uses but have a built form that in our submission is consistent with the mandatory uses. 30As an alternative, the applicant submits that the R2 zone should include the mandatory uses in the R2 zone plus uses that are exempt development. These uses are then grouped into the following sets: a) Dwelling uses including - bed and breakfast establishments, dwelling houses, dual occupancies, granny flats, group homes, home based child care centres, home business, housing for older people or people with a disability. b) Commercial / more intense uses - boarding houses, centre based child care, health consulting / and medical rooms, hostels, local neighbourhood shops, place of public worship, respite day care centres. c) Public uses - public buildings, public utility installations, public transport facilities, telecommunications facilities. d) Council functions servicing residential areas - community facilities, emergency services facility, recreation areas, recreation facilities. e) Ancillary uses - car parking spaces, drainage (other than minor works), roads. f) Different uses - educational establishments, hospitals. 31The applicant submits that the dominant built form character of the area is dwellings and that: ....the Court in forming the opinion as to whether there permissible uses that cause the zones to be equivalent, should attach greater weight to the permissible use of dwelling houses given the overwhelming domination of that use and its determinative role in creating the low density character of the area. The applicant submits that the sets of uses are generally common to both zones and are in fact equivalent. We repeat our submissions above that a purposive approach to interpretation of what uses are equivalent is reasonable in the circumstances where an R2 zone has been gazetted and the structural change brought about by the Standard Instrument required the removal of educational establishments and hospitals as being inconsistent with the zone objectives. 32For the above reasons, the applicant submits that the 2A zone in LEP 2001 is equivalent to the R2 zone in the Standard Instrument and the development is permissible with consent. Council's submissions 33The council submits that cl 54A(2) of the Amending SEPP is clear that an "existing application" relates to development to which SEPP ARH applied before the commencement of the Amending SEPP. SEPP ARH did not apply before the commencement because the site was not zoned R2 under LEP 2011 but was zoned 2A under LEP 2001, which is not a zone referred to in cl 10(1) of SEPP ARH. The fact that LEP 2011 was a draft, even if it was imminent and certain, is irrelevant. 34In addition, cl 1.8A of LEP 2011 provides: 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 35Therefore, the development application must be determined on the basis that the site is zoned 2A under LEP 2001. 36The council submits that for cl 10(1) of SEPP ARH to apply to the development site it is necessary to form the opinion required by cl 5(b)(i) of SEPP ARH as to whether 2A zone under LEP 2001 is "a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone" being the R2 zone. 37The council submits that proper approach to this comparison is set out in Chehade and has been undertaken in a number of decisions of the Court, including Assaf and Pingola. The task involves a comparison of the permissible uses, both with and without consent, in the 2A zone under LEP 2001 and the R2 zone under the Standard Instrument "nothing more than that, nothing less than that". 38The council submits that while an assessment under cl 5(1)(b) must be undertaken for each development application, there is no reason to depart from the findings in Assaf and Pingola. The set of land uses in the 2A zone are significantly different both quantitatively and qualitatively to those in the R2 zone. The council does not accept that additional uses that are permissible under the SEPPs should be included as, while these are types of development that may be carried out in the zone, they are not permissible under the zoning table in the Standard Instrument. 39Even if this were to be the case, the council submits that a number of the uses in the applicant's table should not be included, such as "drainage (other than minor drainage works)" as this is permissible under cl 111 of I SEPP only if carried out by a council. Similarly "recreation areas" and "recreation facilities" should not be included as they have different definitions under I SEPP to those in the Standard Instrument. 40The council submits that even if those uses that are permissible under the SEPPs are included as permissible in the R2 zone there is still a significant difference in the nature and number of uses. 41In council's submission, the land uses permissible in the 2A zone under LEP 2001 are not equivalent to those in the R2 zone under the Standard Instrument and therefore clause 10(1) of SEPP ARH does not apply and the development is not permissible. Findings 42I do not accept the Applicant's primary submission that cl 10(1) of SEPP ARH applies as the site was effectively within the R2 zone under LEP 2011 when the application was lodged. Even if LEP 2011 was imminent and certain, this does not mean that the development site is within the R2 zone for the purpose of cl 10(1). The site is within the 2A zone under LEP 2001. 43I also do not accept the applicant's secondary submission that cl 10(1) applies, as the 2A zone has equivalent uses to those in the R2 zone. In Assaf Pearson C undertook an assessment required by cl 5(1)(b) of SEPP ARH and concluded that the 2A zone under LEP 2001 does not have equivalent land uses to the R2 zone under the Standard Instrument. Nonetheless, cl 5(2) of SEPP ARH provides that an assessment made under cl 5(1)(b) applies only in respect of a particular development that is proposed to be carried out and that more than one such assessment may be made in respect of the same land use zone. 44Clearly, I am required to undertake the an assessment required by cl 5(1)(b) of whether equivalent land uses are permitted in the 2A zone under RLEP to those permitted in the named land use zone, being the R2 zone under the Standard Instrument. In undertaking such an assessment, I am bound by the principles established by Sheahan J in Chehade. 45In Chehade, Sheahan J dismissed an appeal under s56A of the Land and Environment Court Act 1979 (LEC Act) against the decision of Morris C in Chehade v Bankstown City Council [2012] NSWLEC 1122 (Chehade No 1). These decisions outline the principles to form the opinion required by cl 5(b)(1). In Chehade, Sheahan J prefers the submissions of the council which outline: ....a comparison exercise for each of the zones. It involves identifying the zones, it involves identifying the land uses that are permitted in the two zones and the final step involves forming the opinion as to whether equivalent land uses are permitted to those permitted in the named zones, nothing more than that, nothing less than that. To qualify that process by saying that it involves getting a feel for the zones, getting a vibe from the zones, having a look at the objectives of the SEPP, having a look at the objectives of the Act we submit is to amend without proper justification, the clear words of the clause. ... the comparison exercise starts with the named zone for the purposes of this application the named zone is one of the zones identified in 26A through to G, they are the R1, R2, R3, R4, B1, B2 or B4 zones and gives to the consent authority as a matter of, not only quantitative but qualitative assessment for the task of forming the view, or to use the terminology within the clause forming the opinion, that equivalent land uses are permitted in one to the other. 46Even if I accept the applicant's Table of permissible uses, there are still a number of additional uses in the 2A zone which are not permissible in the R2 zone. These include centre based childcare, community facilities, dual occupancies, granny flats, neighbourhood shops, medical consulting rooms, Places of Public worship and public buildings. 47I do not accept the applicant's submission that in comparing the nature of the uses, greater weight should be given to dwellings, as these are the predominant form of development, rather than to the other uses. This is not what is required by cl 5(1)(b). 48In Pingola, I undertook a comparison of the permissible uses in the 2A zone under LEP 2001 and the named uses in the Standard Instrument, particularly the R1 zone, and accepted that they were not equivalent. 49For the above reasons, I find that the applicant's submissions provide no justification that a different decision should be reached to that in Pingola or to that in Assaf where Pearson C found at [39]: In considering the set of permissible uses in the 2(a) Residential Zone (2001 LEP) and the set of permissible uses in either the R1 or R2 Zones (Standard Instrument), there are significant differences, not only in the numerical tally of shared and exclusive uses, but also in terms of the nature of the uses permissible in the 2(a) Residential Zone, when compared to the permissible uses in either the R1 or R2 Zones. 50I am not satisfied that equivalent land uses are permitted in the 2(a) Residential zone to those permitted in the R2 under the Standard Instrument. Clause 5(1)(b) is not satisfied and cl 10(1) of SEPP ARH does not apply. Therefore the proposal is not permissible. For these reasons the application must fail. For completeness, and as requested by the parties, I will briefly discuss the other main issue in dispute. Compatibility with character of the local area. 51Mr Furlong and Ms D Fernandez held different opinions on whether the design of the proposal was compatible with the local area. This difference centred on whether the side setbacks and the first floor balconies were characteristic of the area. 52Ms Fernandez considered that balconies off first floor living areas are uncharacteristic of the area and would result in overlooking of adjoining properties. In particular, she considered that from the balcony of unit 4 it would be possible to look into the front garden of 12 Fremont Street. 53Ms Fernandez accepted that the front and rear setbacks of the development were acceptable but considered that the side setbacks did not reflect the "rhythm of development in the street", particularly the increased setback on the eastern side and its use as private open space. 54In Mr Furlong's opinion the balconies and first floor living areas would not result in unacceptable overlooking and the use of the side setback area as private open space was acceptable and not uncharacteristic of the area. Findings 55The site is a large and wide allotment and the experts agree that the development would appear as a two storey dwelling. The floor space ratio (FSR) of the proposal (0.47:1) is less than what is permissible for a dwelling (0.5:1) and a dual occupancy development (0.6:1) on the site under DCP 2005. The location of the building, particularly the two storey element, and its front and rear setback are consistent with the location of other houses and open space in the street. 56The provision of private open space for units 1 and 2 in the increased eastern setback area is acceptable. There is a two metre wide drainage easement along this boundary which would require any development to be setback. The private open space of unit 1 adjoins the garage of 12 Fremont Street and the private open space of unit 2 adjoins its covered open space. The first floor balconies are located and generally orientated away from adjoining properties. Overlooking from unit 4 of the front garden of 12 Fremont Street is acceptable and could be resolved through the provision of a privacy screen. 57For these reasons, I accept Mr Furlong's evidence that the design of the development is compatible with the character of the local area.

Ajaka v Parramatta City Council

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Cases Cited (4)