Aminzadeh v Parramatta City Council

Land and Environment Court (NSW)|2019-05-14

Judgment

COMMISSIONER: This is an appeal against refusal of Development Application (DA) 130/2018 by Parramatta City Council (the Council) for demolition of existing structures, construction of attached dual occupancy with Torrens title subdivision of one lot into two lots, on Lot 27 DP 35735, also known as 28 Coffey Street, Ermington (the site).
The contention that the Court must consider to grant consent of the DA (130/2018) relates to the non-compliance of the site with the minimum lot size requirement for dual occupancy development, and whether the clause (cl) 4.6 written request, pursuant to the Parramatta Local Environment Plan 2011, to vary the relevant standard is satisfactory.

Background

DA 130/2018 was submitted to Council on 2 February 2018, and following notification, no written submissions were received.
The DA was refused by Council on 8 May 2018, on the grounds of inconsistency with zone objectives and insufficient environmental planning grounds provided in the cl 4.6 written request to vary the minimum lot size standard to grant consent.
The applicant appealed against the refusal of DA 130/2018, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). As a result, the Land and Environment Court (the Court) ordered a conciliation between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (the Court Act), which commenced as a site view on 14 May 2019. There were no objectors heard at the conciliation.

The Site

The site is an irregular shape, with (curved) frontage of 16m along Coffey Street and a total area of 595.5m2. The site is oriented in a north-south direction.
The character of the surrounding area is single and two storey residential dwellings, including an increasing number of dual occupancy developments replacing older housing stock.

Relevant Planning Controls and Requirements

The requirements of s 4.15(1) of the EPA Act, with respect to the proposed development, are relevant in consideration for the Court to grant consent to this DA. 4.15 Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
The site is zoned R2 Low Density Residential, pursuant to the Parramatta Local Environmental Plan 2011 (PLEP). The proposed development is permissible with consent. The objectives of the zone as established in the Land Use Table referred to in cl 2.3 relevantly state: Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment. • To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods.
Clause 6.11 of the PLEP provides the requirements for minimum lot size for the purpose of development of dual occupancy, which are relevant for consideration in this appeal. The areal requirements for a dual occupancy development in this zone are established in cl 6.11(1): 6.11 Dual occupancies on land in Zones R2, R3 and R4 (1) Development consent may only be granted to development for the purpose of a dual occupancy on a lot in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone R4 High Density Residential if the lot has an area of not less than 600 square metres. (2) Without limiting subclause (1), development consent may only be granted to development for the purpose of a dual occupancy (detached) on land in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone R4 High Density Residential if the land: (a) contains a heritage item, or (b) contains 2 street frontages. (3) Despite any other provision of this Plan, development consent must not be granted to development for the purpose of a dual occupancy on land shown coloured purple and edged heavy black on the Dual Occupancy Prohibition Map.
According to the Dual Occupancy Prohibition Map in the PLEP, and pursuant to cl 6.11(3), the site is not located in an area prohibited for the development of dual occupancies.
The objectives relevant for consideration by the Court for subdivision minimum lot size are set out in cl 4.1(1) of the PLEP. It is recognised that pursuant to cl 4.1(4B), the minimum lot size areal dimension stipulated in cl 4.1(2) is not relevant to this proposed development: 4.1 Minimum subdivision lot size (1) The objectives of this clause are as follows: (a) to ensure that new subdivisions reflect characteristic lot sizes and patterns of the area. (2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan. (3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land. … (4B) Subclause (3) does not apply to the subdivision of a lot in any of the following zones if there is a dual occupancy on the lot and one dwelling will be situated on each lot resulting from the subdivision: (a) Zone R2 Low Density Residential, (b) Zone R3 Medium Density Residential, (c) Zone R4 High Density Residential.
Variation of a development standard may be considered by the Court, pursuant to cl 4.6 of the PLEP where a proposed development does not comply with a standard, as relevant in the appeal of this DA.
The relevant sections of the Parramatta Development Control Plan 2011 (PDCP) for consideration are: site planning (Part 1); and subdivision (Part 3).

Evidence and findings

The Court heard from the following planning experts: Mr Jonathon Wood for the applicant; and Mr Darren Wan for the respondent.
The experts agree that the issue that requires resolution under this appeal relates solely to non-compliance with the minimum lot size requirement for dual occupancy development.

Does the request for variation of the minimum lot size for dual occupancy development satisfy the jurisdictional requirements to grant consent?

The planning experts agree that the site of the proposed development does not comply with the minimum lot size (MLS) requirement for dual occupancy development on this site (in this R2 zone), pursuant to cl 6.11(1) of the PLEP. However, they disagree as to whether the MLS standard should be varied for the proposed development based on their assessment of compliance with the jurisdictional requirements of cl 4.6.
Clause 6.11(1) of the PLEP establishes a minimum lot size of 600m2 for development of a site for the purpose of dual occupancy. The site of the proposed development has a (site) lot size of 595.5m2, equivalent to a shortfall of 4.5m2 (0.75% departure) from the standard.
Compliance with the requirements of cl 4.6 of the PLEP for variation in the breach of a development standard is a principal jurisdictional prerequisite that the Court must be satisfied in granting approval to the proposed development under this Class 1 appeal.
The DA relies on a cl 4.6 written request seeking a variation of (exception to) the MLS standard for a dual occupancy development, which the Court must consider pursuant to the requirements as set out in cl 4.6 of the PLEP below: 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 (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. ...
When assessing a request for variation of a development standard, there are a number of steps often referred to as the 'Wehbe tests' that must be considered, which are helpfully explained by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827. A cl 4.6 written request seeking a variation in a development standard must establish reasonableness/necessity for the variation by considering the following: 1. compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved, 2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary, 3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable, 4. the development standard has been virtually abandoned or destroyed by the Council's own decisions in granting development consents that depart from the standard and hence compliance with the standard is unnecessary and unreasonable, or 5. compliance with the development standard is unreasonable or inappropriate due to existing use of land and current environmental character of the site/land. That is, the site should not have been included in the zone.
A recent decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action) clarifies the correct approach to assessing requirements for variation of a development standard. Preston CJ explored in detail the 'preconditions' that must be satisfied, as established in cl 4.6 of the PLEP, to provide the consent authority (in this appeal, the Court) power to grant development consent.
He explained that the first precondition is established in cl 4.6(4)(a), which requires the Court to form two positive opinions of satisfaction that is: initially, as set out in cl 4.6(4)(a)(i), the written request has adequately addressed the requirements relating to unreasonableness/lack of necessity for compliance to the standard (cl 4.6(3)(a)), and that there are sufficient environmental planning grounds (cl 4.6(3)(b)) to justify a departure from the standard; and finally, that variation is in the public interest because it is consistent with the relevant zone and development standard objectives (cl 4.6(4)(a)(ii)).
The second precondition to be satisfied, is that the Court has the relevant power to grant development consent, as set out in cl 4.6(4)(b) of the PLEP, and has considered the elements for concurrence of the Secretary, as described in cl 4.6(5).
The amended cl 4.6 written request seeking variation in the MLS standard is provided in response to cll 4.6(3) and 6.11(1) of the PLEP (Ex 3). Mr Wood is the author of the amended cl 4.6 written request that is before the Court in appeal of this DA.

Satisfaction of Precondition One, cl 4.6(4)(a) of the PLEP

Satisfaction of this precondition (one) relies on assessment of the requirements of cl 4.6(4)(a) as follows: (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), (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,
In response to subcll 4.6(3)(a) and (b) of the PLEP, the cl 4.6 written request concludes that a variation of the MLS standard for dual occupancy development should be supported, as strict compliance to the numeric standard of cl 6.11(1) of the PLEP is both unnecessary and unreasonable, and there are sufficient environmental planning grounds, because: 1. the objectives of the R2 zone and minimum lot size standard (cl 4.1(1)), of the PLEP are achieved, and the proposed development provides housing choice in the zone, 2. the non-compliance with the standard is minimal and indistinguishable from a compliant development, and as the departure from the standard is minor, the concept of permissibility for variation of a standard would be contravened, 3. the slight bend in the curve that fronts to Coffey street results in a non-compliant lot size, although it is not such that it results in an uncharacteristic development that cannot satisfy other development standards and controls, 4. the proposed (2) dwellings would be sited similarly on the site as would be on a compliant sized lot, which would have the same building envelope, street presentation and bulk as the proposed development, 5. all other development standards of the PLEP and controls of the PDCP are complied with, 6. the proposed development is consistent with the emerging subdivision pattern of the zone, is permissible in this zone and locality, and consistent with the future character of the zone, and in particular the locality, 7. there are only a few other lots in the locality sized less than 600m2, and therefore an undesirable precedence would not occur, and 8. the (north) orientation of the lot, one of only a few in the area, provides opportunity to address potential amenity impacts (such as solar access) both internally and to adjoining properties.
I find that cl 4.6(4)(a)(i) of the PLEP is satisfied for the following reasons: 1. The proposed development would differ little from a compliant development (on 600m2 sized lot), and the negligible difference in lot size does not compromise the development or the local area. I consider a variation in the development standard is reasonable, particularly as it results in a development that is characteristic for the area, and without amenity impact due to its orientation. 2. The cl 4.6 written request has addressed to my satisfaction that there are sufficient environmental planning grounds to consider variation of the standard, as the proposed development does not result in adverse amenity impact, is consistent with the shape and size of the lot, and the variation will not be perceived from the public domain. 3. The proposed dwelling when perceived from the streetscape, will not adversely dominate the site. The proposed development when viewed from the street is not inconsistent with the character of the local area.
For the reasons provided above, I am satisfied that the variation of the minimum lot size standard for dual occupancies is considered reasonable, and there are sufficient environmental planning grounds to justify a variation of the standard of 600m2. There are few other developments in the locality that have the benefit of the north facing orientation, and the negligible difference in lot size (4.5m2) non-compliance does not have a perceptible difference in how the development would be designed.
The objectives that relate to the R2 low density residential zone are: Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment. • To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods.
The development standard objectives that must be considered for this DA under appeal are set out in cl 4.1(1) of the PLEP as follows: 4.1 Minimum subdivision lot size (1) The objectives of this clause are as follows: (a) to ensure that new subdivisions reflect characteristic lot sizes and patterns of the area.
With regards to the requirements of cl 4.6(4)(a)(ii) of the PLEP, the applicant explains that a variation satisfies public interest benefit because: 1. the relevant zone objective ('To provide for the housing needs of the community within a low density residential environment') is achieved because the proposed dual occupancy provides for a variety of housing needs in the community, and the proposed development is consistent with a low density development in the zone. 2. The MLS objective is achieved because: 1. the proposed development presents as a building consistent with other similar developments in the locality, compatible in bulk and scale as perceived from the streetscape, and 2. the proposed development is in character with the locality and provides a consistent subdivision pattern with other surrounding and recent dual occupancy developments. 1. As the proposed development achieves the objectives of both the zone and MLS for subdivision, recognising there are no objectives for the dual occupancy standard, because it is in character with the area, indistinguishable from a complying development, and without adverse amenity impact, it is therefore in the public interest.
I make the observation that the cl 4.6 written request's discussion as it relates to the objectives for the zone and development standard, and public interest benefit is not particularly well structured. However, by also relying on oral evidence in the hearing, I am able to discern sufficient detail to assess the requirements of cl 4.6(4)(a) of the PLEP.
With regards to the relevant zone objective ('To provide for the housing needs of the community within a low density residential environment'), it is agreed that the proposed dual occupancy development will provide housing opportunity in the area and is consistent with this zone objective.
With regards to the development standard (MLS) objectives, the cl 4.6 written request incorrectly references the objectives of cl 4.1A of the PLEP, which was repealed on 20 June 2014 and replaced with cl 6.11, which does not cite any objectives. Therefore, the only relevant objective for the Courts consideration with regards to the minimum lot size standard is referenced in cl 4.1, as it relates to subdivision generally. The cl 4.6 written request and Mr Wood's oral evidence correctly acknowledges this objective. I agree with his assessment that the proposed development is characteristic with other subdivisions in the area and consistent with the emerging pattern in the (local) area. Therefore, the relevant objective (cl 4.1(1)) is achieved by the proposed development.
I find that, pursuant to cl 4.6(4)(a)(ii), the proposed development is in the public interest as: 1. there are no adverse amenity impacts to adjoining properties, as the site benefits from a northerly aspect and therefore the development does not need to compromise on size or shape of dwellings; 2. there would be an imperceptible difference between the proposed development on this site with a compliant development, when viewed from the streetscape; and 3. the proposed development is in character with the area and consistent with other recent dual occupancies.
I therefore find that for the proposed development, cl 4.6(4)(a) of the PLEP has been satisfied.
I form the opinion and am satisfied that because the variation of cl 6.11 of the PLEP is reasonable, there are sufficient environmental planning grounds established and the proposed development is in the public interest, precondition one is satisfied.

Satisfaction of Precondition Two, cl 4.6(4)(b) of the PLEP

Satisfaction of this precondition (two) relates to concurrence of the Secretary, pursuant to cl 4.6(4)(b) of the PLEP. To satisfy cl 4.6(4)(b), the requirements of cl 4.6(5) below, should be considered: (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence.
As per the decision of Preston CJ in Initial Action, the Court is not required to obtain or assume the concurrence of the Secretary, although as expressed at [29] it should address cl 4.6(5) of the PLEP: "[29] On appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the Court Act. Nevertheless, the Court should still consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100; Wehbe v Pittwater Council at [41]."
The cl 4.6 written request has obliquely, although not expansively, addressed cl 4.6(4)(b) of the PLEP, by consideration of cl 4.6(5), that the proposed development does not raise any inconsistencies for the Secretary's consideration. I therefore rely on the oral evidence of Mr Wood and Mr Wan.
I find that the requirements of cl 4.6(4)(b) of the PLEP are satisfied for the following reasons: 1. The proposed development responds to the housing needs of the area, and satisfies the zone and relevant standard objectives. 2. The proposed built form is consistent with other surrounding dual occupancy developments, and a compliant MLS would not result in a different built form. 3. The proposed development achieves the objectives of the PDCP for dual occupancy, and provides an improved presentation to the public domain to what is currently observed on the site. 4. The proposed development has been determined to be in the public interest and will benefit the local area by provision of housing that is consistent with the character of the area. 5. The proposed development does not contravene any other development standards or controls.
I therefore consider that precondition two has been satisfied and as a result the proposed development satisfies cl 4.6(4)(b) of the PLEP.

Conclusion

I am satisfied that the contention raised by Council has been resolved with the amended cl 4.6 written request and based on supporting documents of the DA, including the design of dwellings.
I am satisfied that the proposed development for Torrens title subdivision with construction of attached dual occupancy dwellings satisfies the PLEP, including variation of cl 6.11(1) by way of cl 4.6, the objectives of the (R2) zone and other relevant standards, together with the PDCP controls (including streetscape/building form) for dual occupancies.
I am satisfied that the proposed development is lawful and complies with the relevant provisions of the EPA Act, particularly s 4.15.
I therefore find that the Court has the power to grant consent to DA 130/2018.

Conditions

The conditions of consent for DA130/2018 provided in Annexure A are as per the draft conditions provided by the respondent in Exhibit 4, with the following amendment: 1. Change table in condition 1 to refer to Proposed Subdivision Plan as 17276-12, version C by ES Engineering & Design dated 13 June 2018.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Amended Development Application 130/2018 for demolition of existing structures, construction of attached dual occupancy with Torrens title subdivision of one lot into two lots, on Lot 27 DP 35735, also known as 28 Coffey Street, Ermington is approved, subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 1, 3, 4, E and F are returned. ……………………. Sarah Bish Commissioner of the Court Annexure A Plans

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At a glance

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Judgment (12 paragraphs)

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Cases Cited (3)