Al Ali v Canterbury-Bankstown Council

Al Ali v Canterbury-Bankstown Council - [2019] NSWLEC 1115 - NSWLEC 2019 case summary — Zoe

[8]

Weight to proposed environmental planning instrument

Following the preparation of a "planning proposal" application and the authorised delegate's supportive "gateway determination" (under s 3.34(2) of the Environmental Planning and Assessment Act 1979 (EPA Act)), and in accordance with the determination's directions, Council has recently exhibited what it calls its draft Boarding House LEP. The associated planning proposal documentation indicates underlying aims and proposed particulars of what would, with gazettal, form a further amendment to CLEP.
The objectives or intended outcomes of the planning proposal can be seen from the Council documentation as twofold (Exhibit 6, behind Tab 4): 1. to harmonise, as far as boarding house development is concerned, the controls of the former Canterbury and Bankstown Councils (noting these former Councils are now amalgamated into Canterbury-Bankstown Council but nonetheless continue to rely, in the main, on the previously applicable planning controls) 2. to minimise likely adverse impacts of boarding houses on the amenity of the area and neighbouring properties, and to therefore stop what has been seen to be "poor planning outcomes".
The intention seems to be to have certain of the provisions relating to boarding house development, currently contained in Bankstown Local Environmental Plan 2015 (BLEP) at cl 4.1B, included in CLEP. The following specifics, in regard to changes to CLEP, are mentioned in the planning proposal documentation (ibid):

The following objective would be introduced: "When an existing lot is inadequate in terms of its area or width - to require the consolidation of 2 or more lots."
A table would be introduced as shown below.

Under s 4.15(1)(ii) of the EPA Act, when determining a development application, a consent authority is to take into consideration the provisions of: 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…
A question before the hearing is the weight which might be given to the proposed instrument in this instance. There is a line of authorities which indicate weight is to be accorded in accordance with "certainty and imminence" (see eg Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289 (Terrace Tower) and Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279).

[11]

Findings on weight to proposed planning instrument

With partial (only) similarities to the findings of Pearlman J in Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 at [33], we have a good degree of conviction that there will (in due course) be an alignment of the boarding house numerical controls applying in CLEP and BLEP. All other things being equal, this makes sense given the Council amalgamations. It is also our view that, given the gateway determination and other steps to date, this aligning is likely to have the effect of CLEP adopting the boarding house numerical controls applying in BLEP. That is to say there is some degree of sureness that future lot width and area numerical controls for boarding houses will apply in CLEP as indicated in the planning proposal.
There are two more obvious moderating factors in regard to the actual certainty of the inclusion of the proposed numerical controls in CLEP. First is the fact that Council's request to be the local-plan making authority (to finalise the LEP changes itself) was not agreed by the gateway delegate. The reason given was "potential implications for state housing policy and affordability" (Exhibit 6 Folio 384). The second is in regard to the submissions from objectors which need consideration both by Council and by the local plan making authority.
But other uncertainties also suggest themselves to us in regard to the planning proposal. One is an underpinning factor and is in regard to the particulars of the future LEP provisions. In Terrace Tower, there was considerable emphasis given to the question of the purpose of the proposed LEP changes. The notion is that the purpose of the changes should be weighed against the proposed development to see if it is significantly undermining that purpose or objective (see Terrace Tower 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."
Modern LEPs would typically include the objective of an LEP development standard within the LEP itself. We agree with Mr Pickles SC that there is an oddness to the nominated (statutory, or LEP-specific) objective underpinning the intended development standard, with its reference to a procedural requirement (site amalgamation); when, the planning (or outcome) objective (as referenced in the planning proposal) seems more concerned with local character and amenity concerns. We also note that the gateway determination references the need for further drafting of the particulars of the LEP before finalisation (Exhibit 6 Folio 389).
While it was naturally appropriate for Mr Cotton to pursue a line of questioning with Mr Kennan (planning expert for the applicant) directly aligned with the nominated (statutory, or LEP-specific) objective of the planning proposal (ie the practicality of amalgamation), for us this also highlighted what seemed to be an incompleteness to the provisions as drafted.
On the point of certainty, and mindful of Terrace Tower, we do not feel we are in a position to give determinative weight to the purpose of the intended LEP provisions because: (1) the objective as currently drafted is primarily procedural, and gives nothing of weight to "weigh" the proposal as it stands against (see Terrace Tower [7]), and (2) it is too much for us to assume the final content of what might be a recast set of objectives to the intended development standards (ie one more focused on the planning outcomes that lot consolidation purports to achieve).
Turning to the question of imminence, it is not clear to us, including mindful of the above comments, that there is a clear pathway for the finalisation of explicit LEP content to bring about the changes. Of potential relevance, Mr Pickles noted that the State government was moving into caretaker mode at the time of the hearing, with the election date of 23 March 2019.
Our overall conclusion is that there is something less than full certainty in regard to LEP provisions and that the imminence of the LEP is also in question. We cannot give the proposed changes determinative weight. That is not to say no weight at all is attributable. In the merits analysis which follows, the amenity and character issues which seem to be behind the proposed LEP changes are given attention.

[13]

Character compatibility, including amenity impacts

The question of character compatibility was given considerable attention in the evidence. SEPP ARH and the application's response to it (compliance with various development standards) removes the need for assessment of certain issues. But this question of character requires direct attention as a consequence of the SEPP itself, with provisions at cl 30A as follows: 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.
Council argues that the proposal is not compatible with the character of the local area. A factor in Council's argument is that "character", as far as cl 30A of the SEPP is concerned, is that which is desired for the locality into the future. Council's planning expert (Ms Porter) noted in the joint expert report (Exhibit 2, p12) and in oral evidence that the proposed changes to the LEP and DCP can bring about development in-character with the local area. The argument was (ibid): "… it is important that new redevelopment not continue the undesirable elements of planning controls from decades past, and are reflective of current and future controls."
In that sense, according to Ms Porter's evidence, the proposal was seen to not meet the proposed controls for boarding houses in the exhibited draft CDCP amendment in regard to: (1) side setback controls (requirements of 4m - proposed at 2m-2.5m), (2) building depth controls (requirement of 25m max - proposed at 56m on the ground floor with 24m on the first storey per block), (3) landscaping and deep soil controls (requirement for 2m landscape strip along the side setbacks and a deep soil setback of 5m along the front and rear boundaries - the proposed basement and 12.19m lot width prevents deep soil along the side boundaries; although 5m deep soil is possible within the 6.0m front setback (except for driveway and pedestrian path) and the 6.0m rear setback.
Ms Porter explained the intentions of these controls in terms of local character. The controls were seeking to: "…to establish the desired spatial proportions of the street and define the street edge; limit the scale and bulk of development by retaining landscaped open space around; and provide sufficient separation between buildings as sought by the draft planning controls. These objectives seek to 'establish' the 'desired' spatial proportions. They do not seek to emulate past development or undesirable aspects."
Mr Kennan held the view that the proposal was highly compatible with the character of the local area. He pointed to the very mixed nature of the built form in the local area, and went through a series of developments fronting Wangee Road, near the site, and how they would not comply with the setback and landscape requirements of the proposed controls. He also noted that when defining character of the area it was necessary to consider land near the site fronting Wangee Road, but also development immediately to the rear of the site fronting Hampden Road which he said had mostly hardstand in unbuilt upon areas and very little vegetation.
Mr Kennan believed that it was "unreasonable to argue that the development could only be consistent with the streetscape and local character if it was developed in accordance with the Council's draft boarding house controls" and to require development in accordance with the draft controls "would result in a development which is inconsistent with the predominate (sic) built form and, hence, the character of the locality" (Exhibit 2, p16).
The questions which arise when considering character compatibility and local impacts often have points of commonality. Before coming to conclusions on character we consider the evidence on neighbour amenity impacts.
Council's contentions raised concerns in regard to maintaining reasonable levels of privacy to adjoining residents, and the provision of adequate solar access, again, to adjoining properties. But the evidence from the planning experts is that the contentions relating to the amenity of adjoining properties have essentially been addressed by way of further information and amendments to landscaping arrangements.

[14]

Findings in regard to character compatibility and neighbour amenity impacts

The experts generally agreed on what constitutes the existing character of the locality. It is a locality with mixed land use, consisting of residential flat buildings, other medium density housing, detached dwellings, a school, and a mosque.
Relevantly, the south-western side of Wangee Road (the same side as the subject site) is generally built out with 2-3 storey development, including residential flat buildings and a townhouse development. The immediate site environs is represented in one of the DA drawings (entitled 'Streetscape Analysis' and referenced as drawing number A1050 Issue E). It is reproduced in part below.
It is accepted by both planning experts that the proposed development is consistent with the existing character (eg see Exhibit 2 para 76). The question arises as to what extent desired future character should be a consideration here.
The likely future character can be seen as having some relevance in determining the "character" of the local area under cl 30A of SEPP ARH. That is to say previous judgements of the Court have not confined "character" under cl 30A, necessarily, to the existing character (see for example Steel v Liverpool City Council [2019] NSWLEC 1049 at [33]).
We also note that in the Court's planning principle in regard to "compatibility of (a) proposal with surrounding development" (Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture)), then Senior Commissioner Roseth found with respect to the matter before him (at [23]): "There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing."
We note that this planning principle was not directly concerned with the matters raised with cl 30A in SEPP ARH. But when we turn to the question of an "envisaged" change in character for this local area, we note the agreement from Council's planning expert that there were no significant incentives for change in the R4 zone in the generally "built-up" site environs, at least in the site near environs, and that in turn little change in character can be expected in this area in the foreseeable future.
So, we agree with Mr Pickles' submissions that existing and likely future character of the local area would largely line up in this case. Both can be understood from the planning regime which applies. This includes consideration of the R4 zone objectives, which are as follows: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
Permissible land uses and height and floor space controls are also useful in gaining an understanding of anticipated or planned future character. In this instance, it is notable that the proposal: (1) aligns well with zone objectives, (2) meets the height controls, and (3) only marginally exceeds CLEP's FSR controls and is well within the FSR controls when the applicable bonus under SEPP ARH is applied.
This allows us to make a preliminary conclusion that the proposal can be considered as compatible with the existing and likely future character given its consistency with and/or compliance with existing character and planning regime.
The planning principle in Project Venture allows us to scrutinise the compatibility question further against the evidence. Project Venture at [24]-[29] raises two questions. First is whether "(a) proposal's physical impacts on surrounding development (are) acceptable". While we accept Ms Porter's view that a more pleasant environment would be evident if there were substantial landscaping along both side boundaries (as a consequence of deep soil zones on the site), such landscaping would be something outside the local character. We find that the evidence, as given, is favourable on the question of physical impacts (including privacy and solar access and landscaping given the site constraints - see [39] above).
The second question (under Project Venture), is whether "(a) proposal's appearance (is) in harmony with the buildings around it and the character of the street". We accept the evidence of Mr Kennan that the proposal has good levels of visual compatibility and this is to an extent demonstrated visually in Figure 1 (at [41] above). Ms Porter referenced the fact that there was a greater side setback within the townhouse development (north-west of the site). Ms Porter argued that side setbacks in accordance with the proposed DCP controls would be more in harmony in visual terms. In our view this setback difference (proposed development 2.5m vs existing setbacks of around 3m-4m according to Ms Porter, or occasionally less according to Mr Kennan), is not significant in terms of the visual character of the street.
In regard to the exhibited draft DCP provisions, and Ms Porter's explanations of the intended future improved outcomes in terms of amenity and streetscape, as discussed above, at [31], we cannot give significant weight in this instance.
On the basis of the above, we conclude that the proposal is satisfactory in regard to both character compatibility and neighbour amenity impact.

[15]

Parking

Relevantly, cl 29(2)(e) of the SEPP ARH provides that a consent authority must not refuse consent to boarding house development on parking grounds if: … (iia) in the case of development not carried out by or on behalf of a social housing provider - at least 0.5 parking spaces are provided for each boarding room, and (iii) in the case of any development - not more than 1 parking space is provided for each person employed in connection with the development and who is resident on site …
The proposal provides for 23 boarding rooms and 1 room for the resident site manager. The application provides for 11 parking spaces, although there are subtleties around this aspect.
First it needs to be noted that the parking accessway is shown on the plans, relevantly, as 5.99m in width. The experts indicated that the Australian Standards AS/NZS 2890.1:2004 Parking facilities Part 1: Off-street car parking (AS 2890.1) requires a 6.1m wide accessway in instances like this where the accessway is one-sided (ie parking on one side only). This constitutes 5.8m plus an additional 0.3m for greater clearance purposes (replacing the increased flexibility available with two-sided accessways). Second an individual parking space width of 2.4m is acceptable for boarding house development, where accessways comply with the minimum widths referred to (other than adjacent to a solid side wall). However a 2.7m parking space width gives some greater turning flexibility or convenience for drivers.
Back to the particulars of this case, the applicant submitted two basement parking plans. The application (Exhibit A - Sheet A1201) provides for 11 spaces generally at 2.7m parking space widths (with the exception of the two spaces allocated for people with a disability which are 2.4m wide, but with an additional 2.4m "shared area").
A second plan (Exhibit B) provides for 12 parking spaces each with a width of 2.4m. Mr Pickles for the applicant indicated his recommendation that Exhibit B was "preferable" and was clear, in his respectful request, that the Court consider both options in its deliberations.
The preference of Council's traffic expert (Mr Kuntz) in terms of convenience to users was for the wider spaces (ie Exhibit A which provides for 11 parking spaces). Mr Kuntz emphasised that all drivers do not have the same level of ability to park in narrower spaces.
In his final submissions, Mr Cotton pointed to Mr Kuntz's position, and the implications that followed. That is, that this "preferred" arrangement would be a non-compliance with the "do not refuse" standards contained at cl 29(2)(e) of SEPP ARH, and that this was not a defensible position given the problems with the scarcity of local street parking.
The applicant's traffic expert (Mr Corbett) felt that the 0.11m non-compliance of the accessway width (a "1.8% deficiency") was well within acceptable tolerances and "would not impact the operational safety or efficiency of the car parking spaces". Mr Corbett indicated: "AS 2890 Standards "cannot be taken as a textbook", as is stated in the Foreword of AS 2890.1."
Mr Corbett's evidence was based on the 12 parking space plans but he indicated that: "… the provision of 11 car parking spaces to be acceptable in this instance given that the development would likely generate reduced car parking demands noting that the site benefits from good access to public transport services, being within 700m of Lakemba Railway Station and 400m of bus services which operate along Punchbowl Road and Yerrick Road."

[16]

Findings in regard to parking

While we acknowledge Mr Cotton's submissions in regard to the preference for 11 car parking spaces on "engineering grounds". In our view, and when one considers the overall setting (including both the, often, poor availability of on-street parking and the geometry of the proposed parking), it is the 12 car parking space arrangement that is preferred overall (ie Exhibit B arrangement).
Here we do have a mind to Mr Kuntz's view on the fact that more convenience for parking will make it easier for patrons to use it and thus less likely to park in the street. However, four factors sway us to the view that, on balance, the proposed 12 space arrangement is of itself satisfactory. First we give weight to Mr Corbett's comments in regard to AS 2890.1, and its standards having some sense of tolerance within them. Second we note the quite small non-compliance with the accessway width standard (around 1.8%). Third we acknowledge the local setting with, as we say, its limited street parking situation. That is to say, and given the above, it is reasonable to accept the position that residents living in higher density areas are more used to tighter parking conditions than say lower density settings where parking is more generous. Fourth we acknowledge that public transport is readily available if not within very convenient walking distance.
There was some evidence in Court, in the form of vehicle swept path diagrams produced by Mr Corbett, showing that smaller vehicles for the two most constrained spaces (spaces numbered 4 and 11 on the basement plan Exhibit C) would have more capacity to negotiate the turning movements required given the basement parking geometry. There was some consideration of the allocation, and marking, of parking spaces for small vehicles. This was not favoured by Mr Kuntz, who indicated this was not something Council was used to doing, and that he was not confident of compliance. In our view there is no necessity to make provision for this in the consent conditions. But rather this would be expected as the type of matter taken up as a management consideration (if not directly within the Plan of Management itself), naturally by the manager, as a means of assisting residents, but without the need for formal oversight by way of development consent conditions.

[20]

Whether amendments "minor"

Upon the determination that the Court would grant leave for the applicant to rely on amended plans, the Council sought orders for the payment of costs thrown away as a result of the amendments. The applicant did not agree that a costs order should be made.
Section 8.18(3) of the EPA Act makes provisions in regard to costs of this kind: If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent.
Mr Cotton submitted that the amendments were not minor and had occupied significant Council time. It was the Version D plans which were considered in the expert reports, and the plans before the Court were now Version F in regard to some plans (and Version G if the Exhibit B basement plans were considered). There were significant changes to the sewer line details and basement layout, requiring particular re-examination by engineers and meaningful changes to expert evidence. It was suggested that while individual particulars may be interpreted as minor, cumulatively the changes were more than minor.
Mr Pickles submitted that the changes were minor, indicating they were limited to changes to the level of the sewer line and parking; and that there were "no ramifications" for anything above ground. A significant change to the level of the sewer was not the test according to Mr Pickles. No additional written reports were required.
The following points can be made in regard to this contested issue:

Section 8.18(3) of the EPA Act requires costs to be ordered other than in instances of a "minor amendment". That is, to say there is no discretion available to the Court here.
The statute does not define the term "minor" and the onus is on the applicant to show that the amendments are minor (S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167 at [5]-[6].

Pepper J in Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 considered this issue and determined (at [42]) eight guiding principles. While determining that the question of what is a minor amendment is a matter of fact and degree, the principles point to considerations such as: the cumulative or overall effect in context, whether a significant re-assessment was required; and that merely because the amendments are responsive to issues raised by the council or narrow the issues in contention, is not relevant to the determination of whether amendments are minor.
The parties pointed to two more notable amendments: (1) identification of RLs for the sewer main, which passed through the site, resulted in lowering of the basement parking levels and introduction of new grade lines for the accessway, and (2) the access ramps and parking arrangements were modified to allow for 11 parking spaces and the basement changes, as introduced above. The list of amendments prepared by Ghazi Al Ali Architects, and attached to Exhibit A, referenced various other points including: (1) removal of the office (at the front ground level of the building) which resulted in other changes including for waste storage, (2) increases to landscape areas, (3) relocation of bike and motorbike parking, (4) planter boxes along the northern boundary and (5) aligned changes to fire stairs and the like.
A consideration here is what might be the reasonable points of comparison in regard to the amendments. I have adopted the suggestion of Mr Cotton. The expert planners' report indicates that the conferencing commenced with the Revision D plans (which, as a kind of "marker", included the front office). But it is apparent that by the conclusion of the conferencing the Revision E plans were under consideration by the experts (with the office removed etc) and provided at Annexure A to that report. Such changes, and as evidenced in the architect's list, were clearly significant to this proposal; that is, contextually. The changes, mindful of the inter-relationships that come into play, involved dialogue and assessment which involved more than matters of detail, or box ticking, which might be accorded to minor amendments.
For these reasons we are satisfied that the amendments are not minor and that the Applicant is to pay those costs of the Council that have been thrown away as a result, in accordance with the provisions of s 8.15(3) of the EPA Act.

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

Parties

Cases Cited (8)

Cited By (2)