Ashfield Local Environment Plan 1985
15The site is zoned Residential 2(a), under Ashfield Local Environment Plan 1985 (LEP 1985).
16The adjoining allotments to the south-east, 2 and 4 Kensington Road (group of two houses) and the allotment to the rear, 12 Dover Street are listed as heritage items, Schedule 7 of LEP 1985. The site is within the Summer Hill Heritage Conservation Area (Summer Hill HCA) (Exhibit 4, folio 147). Cl 37 of LEP 1985 states the following in relation to development in the vicinity of heritage items and within heritage conservation areas:
The Council must assess and take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage conservation area, archaeological site or potential archaeological site, and on its setting, when determining an application for consent to carry out development on land in its vicinity.
17A residential flat building is prohibited in the 2(a) zone, however the site has the benefit of existing use provisions, pursuant to s 106 and 107 in the EPA Act, as follows:
106 Definition of "existing use"
In this Division, existing use means:
(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and
(b) the use of a building, work or land:
(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and
(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.
107 Continuance of and limitations on existing use
(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.
(2) Nothing in subsection (1) authorises:
(a) any alteration or extension to or rebuilding of a building or work, or
(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or
(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or
(e) the continuance of the use therein mentioned where that use is abandoned.
(3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
18The parties agree that the planning principle in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 (Fodor planning principle) is relevant to my consideration of this matter. The Fodor planning principle, at [17], is as follows:
Four questions usually arise in the assessment of existing use rights developments, namely:
· How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites?
While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessment.
· What is the relevance of the building in which the existing takes place?
Where the change of use is proposed within an existing building, the bulk and scale of that building are likely to be deemed acceptable, even if the building is out of scale with its surroundings, because it already exists. However, where the existing building is proposed for demolition, while its bulk is clearly an important consideration, there is no automatic entitlement to another building of the same floor space ratio, height or parking provision.
· What are the impacts on adjoining land?
The impact on adjoining land should be assessed as it is assessed for all development. It is true that where, for example, a development control plan requires three hours of sunlight to be maintained in adjoining rear yards, the numerical control does not apply. However, the overshadowing impact on adjoining rear yards should be reasonable.
· What is the internal amenity?
Internal amenity must be assessed as it is assessed for all development. Again, numerical requirements for sunlight access or private open space do not apply, but these and other aspects must be judged acceptable as a matter of good planning and design. None of the legal principles discussed above suggests that development on sites with existing use rights may have lower amenity than development generally.
Justice Pain found, in Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 (Stromness) at [87]-[90], the following in relation to existing use rights and the Fodor planning principle:
There is no entitlement to a development consent for a rebuilding, only an entitlement to make a development application. No case to which I have been referred has said that in the assessment of a development application to rebuild or intensify an existing use it is a given that the new proposal must be assessed as against what it replaces to determine if it is satisfactory. Principle 2 in Fodor states that where an existing building is proposed for demolition there is no automatic entitlement to another building of the same floor space ratio, height or parking provision. That is correct in my view, given the provisions of the EP&A Act I have outlined. If a merit assessment under s 79C is applied to a new building which is a rebuilding for the purposes of continuing an existing use, it is possible that the existing use holder will not be allowed to build something identical to that which already exists if a merits assessment results in the conclusion that the impacts under s 79C are unacceptable.
88 That is not to say that consideration of the building intended to be replaced is irrelevant to the merit analysis under s 79C. It may well be appropriate depending on the circumstances that the building intending to be replaced is considered, and I consider it is appropriate in this case to do so. The merits assessment is not confined to that comparison only however, it is also necessary to consider the development application more broadly under s 79C. The planning principles in Fodor can assist in that consideration.
89 Principle 1 in Fodor states that it is acceptable to consider the relevant planning instruments as these apply to the area surrounding the proposed development because these determine the nature of development in that area. That principle is not inconsistent with s 108(3) as the Applicant submitted. Care must be exercised, however, against the possibility that such an assessment leads to a de facto application of standards in environmental planning instruments to the existing use rights site. Failure to comply with standards in an environmental planning instrument cannot be a consideration in the assessment of the application based on existing use rights. The same can be said in relation to Principles 3 and 4 but these can clearly otherwise apply to assist in the merit review under s 79C.
90 I do not agree that matters such as the context of the proposed development cannot be taken into account as the Applicant argued when submitting that Mr Ingham's approach was incorrect. If the assessment under s 79C is to be adequate it must consider the proposal in its surroundings, and that is clearly a fundamental part of any analysis required under s 79C(1)(b) and (c).