Belmore Residents Action Group Inc v Canterbury City Council & Anor

Land and Environment Court (NSW)|2007-02-05|Before: Lloyd J

Introduction 1 HIS HONOUR: On 21 September 2006, the first respondent, Canterbury City Council, granted development consent to the second respondent, Greek Orthodox Parish and Community of Belmore and District All Saints Limited, for the demolition of structures, for alterations and additions to a heritage item and for the construction of a primary school, at the All Saints Greek Orthodox Church site in Belmore. The existing church on the site is to be retained. 2 The applicant, Belmore Residents Action Group Incorporated, seeks a declaration that the development consent is invalid and an order restraining the second respondent from carrying out the development.

The issue 3 The development infringes the floor space ratio control in the relevant environmental planning instrument, Canterbury Local Environmental Plan No. 178 - Belmore-Lakemba Precinct ("the LEP"), cl 14. As part of the development application the second respondent lodged with the council an objection under State Environmental Planning Policy No. 1 - Development Standards ("SEPP No. 1"), to the application of the floor space ratio control. The council in determining to grant the development application allowed the SEPP No. 1 objection. 4 The applicant contends that the council misconstrued the relevant clause, cl 14 of the LEP, in allowing the objection, or alternatively, the council failed to ask itself the correct question when considering the objection.

5 The land is within zone No. 2(a) (Residential "A" Zone) under the LEP. Clause 11 of the LEP states that before granting consent to development within a zone, the council must take into consideration the zone development objectives. The objectives of zone No. 2(a) are to achieve: (a) residential development comprising single dwellings, dual occupancies, town houses and villa homes; and

(b) development which will not detrimentally affect the residential character or amenity of the area. 6 Educational establishments are expressly permissible with development consent within the relevant zone (cl 10). 7 Clause 14 of the LEP makes provision for floor space ratios for non-residential development in a residential zone. It states: (1) The maximum floor space ratio for non-residential buildings in Zone No 2(a) is 0.5:1.0 and 0.75:1.0 in Zone No 2(c).

(2) In this clause "floor space ratio" , in relation to a building, means the ratio of the gross floor area of the building to the area of the site on which the building is, or is proposed to be, erected. 8 The proposed development is spread across a number of individual allotments. It is alleged that the site of the pre-school will have a floor space ratio of 0.35:1, the site of the kindergarten will have a floor space ratio of 0.64:1 and the site of the primary school will have a floor space ratio of 1.34:1. I doubt, however, that this is the way to calculate the floor space ratio. The "site" is the whole development site. It is the total gross floor area of buildings as it relates to the whole site which, it seems to me, is the relevant calculation for determining the floor space ratio. When calculated in this way the figure is 1.03:1. The applicant submits that since the proposed development is spread over land which is divided by a public road, then regardless of how cl 14 is interpreted, there are two sites rather than one; that is, one on each side of the road. Nevertheless, not much turns on these distinctions and whichever calculations are used, the floor space ratio infringes cl 14 (1) of the LEP. 9 As noted in par [3] above, as part of the development application the second respondent lodged an objection to the application of cl 14 of the LEP to the development, pursuant to SEPP No. 1. 10 In the discussion of the objective of the standard to be varied, the objection notes that there are no specific objectives for the floor space ratio control, identifies the relevant objectives of the residential 2(a) zone as "(b) development which will not detrimentally affect the residential character or amenity of the area", and states that the assumed objectives of the floor space ratio control are: (a) to control building bulk and scale of development;

(b) to minimise adverse impacts on adjoining properties; and

(c) to minimise significant adverse traffic impacts on a locality. 11 The objection under SEPP No. 1 then states (inter alia): It is considered supportable to propose a building that numerically does not comply with the Council's LEP in terms of FSR [floor space ratio] if all the other compliances are met with respect to building setbacks and the building height place. This is because these DCP controls with which the building complies are those that effect bulk, mass, visual amenity and overshadowing. … In the fact that the site is proportionately larger than any single site, the effects on amenity, overshadowing, privacy and bulk are easily ameliorated as demonstrated by the capacity for the design to meet the significant constraints set out in Council's DCP whilst at the same time exceeding the LEP requirements in terms of FSR. 12 In the discussion of how the development proposal, notwithstanding the non-compliance with the development standard, will achieve the objectives of the standard, the objection states (inter alia): The assumed underlying objectives of the FSR standard, as detailed above, and the relevant objective of the Residential 2(a) zone under LEP No. 178 relate to establishing reasonable upper limits for development through a limit on the amount of floor space that can be provided. This would help reduce the potential for adverse impact on nearby and adjoining development whilst still providing for reasonable levels of development. 13 The objection then goes on to explain how the objectives will be achieved, noting that much of the floor space will be below ground, thereby reducing the floor space ratio for above ground structures to 0.69:1, compliance with other controls designed to limit height and bulk, and the absence of any significant adverse impacts on surrounding properties (inter alia). 14 The council decided that an independent assessment of the proposal be undertaken. That assessment was undertaken by a planning consultant, Localplan Pty Ltd, which furnished a report to the council, dated January 2006. The report recommended that the council grant consent to the development application subject to conditions. In the discussion of the objection under SEPP No. 1, the report sets out the following summary of the objection: 1 the proposal provides a well designed and appropriate educational facility which will not create significant adverse impacts on the streetscape and surrounding properties; 2 most of the additional bulk and scale is below ground and will not result in any adverse impact on surrounding properties in terms of solar access, privacy or significant traffic impacts; 3 strict compliance with the standard would unnecessarily complicate orderly and economic development of the land in accordance with the intentions of the zoning and objectives of the Act; 4 schools, along with churches, are traditional compatible uses in residential zones and there are strong planning reasons for actively permitting these uses in residential zones as they provide important social and community functions at the local level; 5 this is an ideal site for the schools in that it provides for a strong relationship with established church of the same parish; 6 the floor space ratio controls relate primarily to the redevelopment of individual house sites rather than to a larger consolidated site as is proposed; 7 a public roadway through the centre of the development mitigates the expression of bulk by creating spaces between the buildings consistent with a church and parish environment within a total urban context; 8 the parking and traffic arrangements are considered satisfactory by both the Roads and Traffic Authority and Council's Traffic Committee . 15 In the assessment of the floor space ratio the independent report states that floor space ratios are "an important guide to the scale, built form, amenity, density and demand for services". The report then states: There are a number of mitigating factors offering justification for the variations in height and density: 1 the existing church across the street is a taller, bulkier than the provisions of the residential code allow, so that the proposal could be seen as a transition down to a domestic residential house scale; 2 the area less than 100 metres to the west is zoned and used for medium density three and four storey residential flats; 3 Council's Code for townhouse development would have enabled a building to be constructed closer to the site boundary than is being proposed; 4 nearly a third of the floor space is to be below ground level; 5 because the sites straddle a street, the impact in urban design terms is greatly reduced. 16 The council's Director of City Planning also prepared a report on the development application, apparently dated 14 September 2005. The report discussed the issue of the floor space ratio and the SEPP No. 1 objection under the heading: "Issue 1 - The floor space ratio and the SEPP 1 objection submitted." The report repeats the grounds raised by the applicant as summarised in the report of Localplan Pty Ltd, noted in par [14] above. The report than contains a consideration of the SEPP No. 1 objection under a number of headings as follows: 1. What the development is and is it a development standard? ….

What is the underlying object or purpose of the standard? …

Is the compliance with the standard consistent with the aims of the policy? (a) Does compliance with the standard hinder the object[s] of the [Environmental Planning and Assessment] Act under s 5a(i) and (ii)? …

Is the compliance with the standard unreasonable or unnecessary in the circumstances of the case? …

Is the objection well founded? 17 These are settled questions for determining an application under SEPP No. 1: Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79. 18 Under the heading "What is the underlying object or purpose of the standard?", the report of the Director of City Planning states: In the absence of any specific object of purpose to the standard, the objectives of the Residential 'A' zone are relevant (as expressed in Clause 11(1) of the LEP). The underlying object or purpose of the standard is therefore to provide for development which will not detrimentally affect the residential character or amenity of the area. 19 Under the heading "Is compliance with the standard unreasonable or unnecessary in the circumstances of the case?", the report of the Director of City Planning states, however, the following: … Nearly one third of the floor area of the development is provided below ground level hence will not be visible from the street or the adjoining residential properties. As a consequence this floor area will not contribute to a development of significant bulk, scale and massing. In most cases the object or purpose of a floor space ratio requirement is to control the bulk and scale of buildings, to provide separation between buildings, to preserve the amenity of existing buildings in terms of shadowing, privacy, views, ventilation and solar access. In the event that such a large proportion of the floor area is provided below ground, the resultant development does not cause adverse privacy, overshadowing or visual amenity concerns beyond that which is considered reasonable for a development of this type and intensity. Another tool for controlling the bulk and scale of a development is the application of a Building Height Plane. The building height plane control defines the envelope or space within which a non-residential building should be confined. It ensures that non-residential developments are of an appropriate building mass and form such that that their impact on the adjoining properties is minimised. The Building Height Plane controls as contained within DCP 9 have been applied to this development. The development complied with the applicable building height plane provisions. As a significant portion of the proposed floor area is provided beneath ground level and that the additional measure for controlling bulk and scale being a building height plane control, is complied with then a variation to applicable floor space ratio provisions is worthy of support. The site also provides open space in terms of three street frontages which allows for an openness around the building assisting in the integration into the area countering any perception of overdevelopment. 20 In his consideration of Draft State Environmental Planning Policy (Application of Development Standard) 2004, the Director of City Planning states: There exists no specific aims or objectives expressed in the Canterbury Local Environmental Plan No. 178 (Belmore/Lakemba Precinct) that relate to the applicable development standard. It is implied however that the underlying object or purpose of the development standard is to control the bulk and scale of buildings. This will in turn provide for a development that is compatible with the style, orientation and pattern of the surrounding built form in addition to preserving the amenity of the existing adjoining buildings in terms of overshadowing, privacy, view loss, ventilation, solar access etc. 21 The council's City Development Committee, which resolved that the development application be approved, had before it not only the report of the Director of City Planning, discussed above, but also the report of the independent planning consultant, Localplan Pty Ltd. Moreover, the report of the Director of City Planning states: The planning consultant's finding should be read in conjunction with this report. The conclusions are the same. 22 At its meeting on 14 September 2006, the council's City Development Committee, in terms of authority delegated to it by the council on 17 March 2005, resolved that the development application be approved subject to conditions.

The applicant's submissions 23 Mr N Perram SC, who with Mr B L Jones, appears for the applicant, made the following submissions. (a) In considering an objection under SEPP No. 1, the council must have regard to whether the underlying purpose or objective of the development standard is satisfied by the particular development. (b) The council failed to consider the underlying purpose of the development standard. (c) The underlying purpose or objective of the standard is to limit the size and bulk of non-residential buildings in a zone comprised of single dwellings, dual occupancies, town houses and villa homes. (d) The Director of City Planning, in his report to the council, identified the wrong purpose or objective of the standard, and instead identified the objective of the relevant zone. (e) The requirement to consider the correct objective was a mandatory relevant consideration. (f) Accordingly there was an error of law on the face of the record and a failure to comply with a mandatory requirement.

Conclusions 24 It is settled law that, in order to maintain an objection that compliance with a development standard is unreasonable or unnecessary, it is necessary to discern the underlying object or purpose of the standard: Hooker Corp Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441, Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 89 [26]. It is also settled law that a failure to identify the objectives of the development standard and then to consider whether, in the light of those objectives, it was unreasonable or unnecessary to apply the development standard, would mean that the consent authority has fallen into legal error: Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217 at 221. A failure of a decision maker to take into account a relevant consideration which he or she is bound to take into account in making a decision is a well-recognised ground of judicial review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. 25 Whilst the relevant principle is in no doubt, the facts, however, are to the contrary. The objective or purpose of the floor space ratio control in cl 14 of the LEP is not stated. The objection that was lodged under SEPP No. 1 clearly states, however, that the assumed objectives of the control, as noted in par [10] above are: (a) to control building bulk and scale of development;

(b) to minimise adverse impacts on adjoining properties; and

(c) to minimise significant adverse traffic impacts on a locality. 26 The report of the independent planning consultant, Localplan Pty Ltd, which was before the council when it made its determination, clearly addresses these objectives, as noted in par [14] and [15] above. 27 The report of the council's Director of City Planning, which was also before the council when it made its determination, wrongly identifies the objectives of the relevant zone as the underlying object or purpose of the development standard, as noted in par [18] above. The report goes on, however, to identify the correct object or purpose of the standard, which I have noted in pars [19] and [20] above. As those paragraphs of the report also demonstrate, the report contains an assessment of whether it is unreasonable or unnecessary to comply with the standard against the correct object or purpose of the standard. 28 In another way, the evidence does not support an inference that the council fell into legal error in its consideration and assessment of the development application and of the SEPP No. 1 objection. The applicant bears the onus of satisfying the Court that the council has failed to take a relevant matter into consideration or that it asked itself the wrong question so that its discretion miscarried: Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 at [37]. The applicant has been unable to discharge that onus in the light of the evidence. 29 It is also settled law that an error or omission which will attract judicial review will not lead to invalidity unless it is a material error: Parramatta City Council v Hale (1982) 47 LGRA 319 at 355; Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275. Moreover, the error must be more than an error at some stage of the process - it must be an error which affects the ultimate decision: Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343. In the present case although a wrong objective or purpose of the development standard had been identified in the report of the Director City Planning, the assessment of the objection under SEPP No. 1 and the determination that it was unreasonable or unnecessary to comply with the development standard was made against the correct objectives of the standard. That is, it would appear that the error did not affect the ultimate decision-making process.

30 Judicial review is concerned only with the legality of an administrative decision. In this case the applicant alleges that there was a failure to consider matters to which the law requires that consideration be given. The evidence shows that there has been no such failure in the present instance.

Orders 31 The formal orders of the Court are: (1) The application is dismissed.

(3) The exhibit may be returned. I hereby certify that the preceding 31 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Belmore Residents Action Group Inc v Canterbury City Council & Anor [2007] NSWLEC 38

(2004) 135 LGERA 257

(1986) 130 LGERA 438

(2000) 110 LGERA 217

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