Bhat v Hornsby Shire Council

Issues

1. Notwithstanding amendments made, the Respondent maintains that the development application warrants refusal on the following grounds: 1. The lot size and minimum dimensions of the subject site do not meet the standard at cl 4.1 in Hornsby Local Environmental Plan 2013 (LEP 2013) for minimum subdivision lot size. Further, the Respondent argued that the Applicant's written request seeking to vary the minimum subdivision lot size standard fails to satisfy the tests at cl 4.6 of LEP 2013 and should not be upheld. 2. That the approval of the proposed subdivision would be inconsistent with the established and future desired streetscape and character within Boronia Place and Castle Howard Road.

Site and Locality

1. The existing lot is of a regular shape, has a 15.6m street frontage to Boronia Place, a 15.24m street frontage to Castle Howard Road and an area of 1,151.8m². The site has the benefit of two street frontages.
2. The site includes an existing part two-storey dwelling house with detached carport. The site also includes a number of locally indigenous trees identified as significant. The site falls approximately 12m from the frontage at Boronia Place towards Castle Howard Road.
3. The site adjoins heritage listed street trees along Castle Howard Road listed as item No. 69 under Sch 5 of LEP 2013.
4. The site is partially within a bushfire prone area.
5. The site is zoned R2 Low Density Residential pursuant to LEP 2013 and is identified in Sch 5 as being within the Beecroft-Cheltenham Heritage Conservation Area (HCA).
6. The parties agree that the existing Lot sizes immediately adjoining the subject site and directly opposite have the following lot sizes: (Exhibit 2)
7. I note that the written request pursuant to cl 4.6 of LEP 2013 considers lot sizes of properties beyond those listed above, these are discussed later in the judgment.

Public Submissions

1. Development Application No. DA/628/2022 was lodged with the Respondent on 21 June 2022. The application was placed on public notification to adjoining and nearby landowners between 22 June 2022 and 14 July 2022. There were 15 submissions received in response to notification of the application. The matters raised in the objections can be summarised as follows: 1. The proposed subdivision does not comply with the minimum lot size requirements of LEP 2013 and would set an undesirable precedent for further subdivision in the HCA, 2. The justifications provided by the Applicant to vary the lot size standard are unfounded, 3. Prominent trees have already been removed from the site, particularly in the proposed location of the dwelling on the Castle Howard Road lot, 4. Boronia Avenue is narrow and poses a safety risk to pedestrians and vehicles, particularly during construction, 5. Removal of vegetation would have a detrimental impact on fauna habitat, 6. The site is flood prone and the proposal may affect the water table, 7. The site is steep, and the development will encourage overland flow of stormwater through the site and onto adjoining properties, 8. The proposed dwelling on Lot 1 has insufficient setback and would encourage overlooking and impact privacy to the property at 40 Lyne Road. 9. The proposed development is out of character with the HCA. 10. The proposed dwelling on Lot 2 would overlook the rear yard and pool area of 2 Castle Howard Road impacting their privacy. 11. There is potential for the proposed earthworks, the construction and loss of trees to impact the health of nearby immunocompromised residents. 12. The proposed development will detrimentally impact property values for the adjoining properties. 13. The tree removal proposed will reduce the current leafy outlook enjoyed by residents.
2. At the commencement of the hearing, a number of members of the public addressed the Court onsite detailing their concerns with the development application. In addition to the preceding issues, they argued that: 1. The proposed development, specifically the proposed undersized lots, have the potential to detrimentally impact the significance of the HCA and will create an undesirable precedent for further subdivision. 2. That the proposed lots sizes are too small and will result in adverse pressure on the retention of the key heritage elements in the HCA. 3. That the heritage impact assessment (HIA) focusses too heavily on the existing dwelling and fails to give sufficient weight to the fact that the existing lot was created as part of the c1930 'Sunbeam Estate'. The intactness of the original lot and its heritage significance has been given insufficient consideration. 4. The design of the dwellings on the proposed lots, and their private open space, will detrimentally impact the privacy of adjoining neighbours' yards and pools. 5. The proposed dwellings will create overshadowing, reducing the solar amenity of adjoining properties. 6. The footprint of the two dwellings proposed leave insufficient room for replanting of canopy trees. 7. The development application includes misleading statements including that "the majority of the surrounding houses are gradually either being replaced or undergoing renovations". Factually, of the 17 nearest houses only two have undergone such work.
3. In determining the development application, I have read and considered the submissions received by the public as required by s 4.15(1)(d) of the EPA Act.

Should cl 4.1 Minimum subdivision lot size be varied?

1. The proposed development seeks to vary the minimum subdivision lot size in LEP 2013 that applies to the land. That clause states: 4.1 Minimum subdivision lot size (1) The objectives of this clause are as follows - (a) to provide for the subdivision of land at a density that is appropriate for the site constraints, development potential and infrastructure capacity of the land, (b) to ensure that lots are of a sufficient size to accommodate development. (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. (3A) If a lot is a battle-axe lot or other lot with an access handle, the area of the access handle is not to be included in calculating the lot size. (4) This clause does not apply in relation to the subdivision of any land - (a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or (b) by any kind of subdivision under the Community Land Development Act 2021.
2. Applying cl 4.1(2) of LEP 2013, the lot size map nominates a minimum subdivision lot size of 600m² for the subject site.
3. The development application seeks to vary the standard at cl 4.1 of LEP 2013 of 600m² for both of the proposed lots. The development application proposes a subdivision that would result in two lots of a site area less than 600m², namely:

• Lot 1: 577.2m² (a variation of 23m² or 3.8%)
• Lot 2: 574.6m² (a variation of 25.5m² or 4.25%)

1. The Applicant relies on the satisfaction of cl 4.6 of LEP 2013 to vary the provision. Part of the development application includes a written request to vary the development standard at cl 4.1 of LEP 2013 prepared by Minto Planning Services (the written request). The written request nominates the variations sought as follows: "The proposal provides for one lot (Proposed Lot 1) which is to have an area of 577m² and one lot (Proposed Lot 2) which is to have an area of 574.5m². The proposed lot sizes for Lot 1&2 do not comply with the minimum allotment size requirements of Clause 4.1 of the LEP. Proposed Lot 1 results in a shortfall of 23m² or 3.8% and Proposed Lot 2 results in a shortfall of 25.5m² or 4.25%." (Exhibit E)
2. Clause 4.6 of LEP 2013 states: 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 Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning 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 Planning Secretary before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone C2 Environmental Conservation, Zone C3 Environmental Management or Zone C4 Environmental Living if - (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. Note - When this Plan was made it did not include of these zones. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following - (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4, (caa) clause 5.5. (8A) This clause does not allow development consent to be granted for development that would contravene clause 4.4 for a building on land in Zone E1 Local Centre within the Epping Town Centre, identified as "Area 9" on the Floor Space Ratio Map for the following purposes - (a) boarding houses, (b) group homes, (c) hostels, (d) shop top housing, (e) tourist and visitor accommodation, (f) a mixed use development comprising a combination of uses specified in paragraphs (a)-(e). (8B) Subclause (8A) and this subclause are repealed at the beginning of 31 July 2024. cl 4.6: Am 2021 (470), Sch 2[3]; 2022 (832), Sch 1.12[7].
3. Clause 4.6(4) of LEP 2013 establishes preconditions that must be satisfied before a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ("Initial Action")). It is well established that the state of satisfaction required by cl 4.6(4)(a) of LEP 2013 mandates that the Court, in exercising the functions of the consent authority, must in fact be satisfied of the matters in cl 4.6(3), and that the state of satisfaction must be reached by reference to the written request: RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 ("RebelMH') at [4].

What 'development' is relevant for the purposes of cl 4.6?

1. In their oral submissions Mr Seton, for the Respondent and Dr Smith, for the Applicant disagreed to what extent the different components of the development application were relevant to the satisfaction at cl 4.6(3)(b) of LEP 2013. Namely, whether the written request establishes there are sufficient environmental planning grounds to justify contravening the minimum subdivision lot size provision.
2. In essence, Mr Seton argues that the Applicant can only rely on the subdivision component of the development application, as it is this component of the development which is relevant to the contravention of the minimum lot size. Mr Seton argues that the construction of the dwelling houses, and any benefits that arises from them, are not able to be relied on to justify the variation to the minimum lot size standard.
3. In contrast, Dr Smith argues that the dwellings proposed are part of the development for which consent is sought in the development application and that it is artificial to seek to separate the components of the application. He argues that the proposed dwellings demonstrate the achievement of appropriate density and are able to form part of the reasoning advanced in the written request to satisfy cl 4.6(3)(b) of LEP 2013 that there are sufficient environmental planning grounds to justify the variation. Secondly, he submits that applying the reasoning from Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121 at [61], subdivision is generally in order to use the land for a particular purpose. In this case he argues that purpose is clearly residential.
4. In Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 ("Baron") at [9], Preston CJ held that the "development" referred to in subcll 4.6(2), (3) and (4) of LEP 2013 is the development that is the subject of the development application. Development is defined at s 1.5 of the EPA Act. Applying the reasoning in Baron, I accept and prefer the submissions of Dr Smith that the reference to 'development' in cl 4.6 is a reference to the development for which consent is sought in the development application. In this proceeding, the development the subject of the development application is both the proposed subdivision and dwelling houses.
5. In Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [29], the Court held that the satisfaction at cl 4.6(3)(b) is directed to a circumstance that is particular to the site. Further, in Initial Action at [24], the Court held that the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole. It is in relation to this second principle that, arguably, the contravention of the minimum lot size is more relevantly directed to the subdivision than the erection of the dwellings. This is considered further in the following discussion of the grounds advanced.

The environmental planning grounds relied on by the Applicant.

1. In these proceedings, the written request seeks to justify the contravention of the development standard on grounds that it describes as environmental planning grounds. The environmental planning grounds detailed in the written request are as follows: "• The proposal will provide for the orderly and economic development of land through the creation of an additional parcel of land which will increase housing supply within the locality. • The subject site has an area of 1,151.8m² which is larger than the area of adjoining and nearby allotments. • The subject site as a result of its lot size and two street frontages is inconsistent with the current subdivision pattern of the locality. In this regard the site is located in an area which has been subject to an evolving subdivision pattern whereby the areas original allotments have been subdivided over time so as to create smaller allotments and to take advantage of the construction of new roads and the like. Reference is made to the Heritage Impact Statement prepared by Weir Phillips Heritage. • The subject land having two street frontages is clearly suited to subdivision into two parcels of land having lot dimensions (rectangular) and sizes that are consistent with the surrounding subdivision pattern. • The subdivision will allow for both the retention of significant trees located upon the site as well as the planting of appropriate replenishment vegetation. • The proposed allotments are both considered capable of supporting complying development, as demonstrated by the architectural plans which comply with the requirements of the Council for a dwelling house. • The newly created lot is consistent with infill development in the area. The infill subdivision will have minimal effect on the environment and is a natural progression of subdivision in the locality. • Through good design there will be minimal change to the streetscape. The design also provides for good amenity between the dwellings on the newly created lots as well as neighbouring properties. • The provision of an additional serviced residential allotment takes advantage and makes better use of existing infrastructure (roads, sewer, electricity etc) and is therefore in the public interest. • The subject site having two street frontages and an area of almost 1,200m² is inconsistent with the prevailing subdivision pattern and whereby surrounding allotments comprise of single street front allotments of 600m² to 800m²." (Exhibit E)
2. The Weir Phillips Heritage Impact Assessment (HIA) discusses the historical development of the subdivision pattern of the locality which is referenced by the written request. I have read and considered the HIA in assessing the environmental planning grounds advanced by the written request.

The environmental planning grounds are not sufficient to justify the contravention

1. I am not satisfied that the written request demonstrates sufficient environmental planning grounds to justify either of the contraventions of the development standards at cl 4.1(2) of LEP 2013 those being the lot area standard.
2. In Initial Action at [24], Preston CJ stated, that: "The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds". Further he stated, "… the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]".
3. On this basis, the elements for consideration in determining whether I am satisfied that there are sufficient environmental planning grounds are:

• Firstly, whether the grounds advanced are environmental planning grounds;
• Secondly, whether the environmental planning grounds advanced in the written request focus on the aspect or element of the development that contravenes the standard, or in the alternative, promote the benefits that will be realised by the development as a whole; and
• Thirdly, I must be satisfied that the environmental planning grounds are "sufficient" to justify, or inform, the aspect or element that contravenes the development standard.

1. Addressing the grounds advanced in the written request extracted at [27] I make the following observations.

Orderly and economic development (Grounds 1 and 9)

1. The written request argues the proposal will achieve the orderly and economic development on two bases. Firstly, that the subdivision will result in additional housing supply and secondly that the increased residential development will provide for more efficient use of existing public infrastructure. I am persuaded that this ground is an environmental planning ground tied to the objects at s 1.3(c) of the EPA Act. Further, both bases are factually correct. However, the written request fails to establish that this benefit (orderly and economic development) arises from the variation to the minimum subdivision lot size standard, rather than being a benefit of the development as a whole. In my assessment the written request fails to establish that the ground relied on is tethered to or arises from the variation to the lot size standard for both of the proposed lots. This is contrary to the reasoning of Initial Action at [24].
2. To the extent that the creation of an additional lot could be argued to be demonstrative of, or tethered to, the aspect or element of the development that contravenes the development standard, I am not persuaded the grounds are sufficient. The variation sought may be quantitatively moderate, being 3.8% or 4.25% for Lot 1 and 2 respectively, qualitatively, it will result in allotments which are of a different character to those in the locality in two ways. Firstly, they are less in area than envisaged by the planning controls which specifically delineate a minimum lot size for the extent of the HCA which is different to the surrounding areas. Secondly, the lot configuration is in contrast to the existing 'infill' subdivision that has occurred which are predominately of a battleaxe form.
3. For these reasons, grounds one and nine are inadequate to justify the contravention of the standard at cl 4.1 of LEP 2013.

Compatibility of lot size (Grounds 2, 3, 7 and 10)

1. I accept that achieving consistency in the streetscape and fit with character is an environmental planning ground that may justify contravention of a development standard: SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 at [90]. However, factually I am not persuaded that it is an environmental planning ground that applies in the circumstances. This is not a locality where a regular pattern of subdivision size or configuration of lots is apparent which would ground such an argument. In fact, in contrast to the assertions in the written request, I note in their joint report, the planning experts agreed that lots in the vicinity of the site range from 689.2 to 1170m², noting that 67 Boronia Place has an area of 1009m². The proposed lots with areas of 577m² and 574.5m² self-evidently fall outside this range. Further, as noted in the preceding, the 'smaller' lots within proximity of the site are predominately of a battle-axe form. I am not persuaded that the creation of the lots proposed are in fact consistent with the locality, thereby they are not sufficient to justify the proposed contravention of the minimum lot size for both proposed lots.
2. For these reasons, grounds two, three and seven are inadequate to justify the contravention of the standard at cl 4.1 of LEP 2013.

Site suitability (Grounds 4, 5, 6, and 8)

1. The grounds advanced broadly on the basis of site suitability are firstly that the lot is large, has two street frontages and when subdivided would result in two rectangular lots. Secondly, that the proposed lots are of sufficient area to accommodate dwellings that comply with the planning controls for residential development in LEP 2013 and the Hornsby Development Control Plan 2013. Thirdly, that the design of the subdivision and the proposed dwellings provides for a good streetscape and amenity outcome.
2. The first part of this ground is a statement of fact about the development. The written request does not seek to argue how these two attributes of the site are tethered to, or arise from, the variation the site area standard. In my view, the fact of having two street frontages, or a rectilinear shape, as attributes of the lots is not an environmental planning ground that could ground a justification to vary the site area standard.
3. Achieving compliance with planning controls, the limited environmental impacts justification and streetscape presentation are relevant, but do not in of themselves justify the exceedance of the development standard. The written request makes no argument as to how these matters are tied to the variation of the standard or how this ground is sufficient to warrant the extent of the variation sought.
4. For these reasons, grounds four, five, six and eight are inadequate to justify the contravention of the standard at cl 4.1 of LEP 2013.
5. Further, when looked at collectively I find I am not satisfied that the environmental planning grounds advanced in the written request are sufficient grounds to justify the contravention of the site area and dimension standards at cl 4.1 of LEP 2015.
6. I note that Dr Smith made submissions that the principle in Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94; [1999] NSWCA 19, is relevant to the Courts satisfaction that the environmental planning grounds advanced in the written request are sufficient grounds to justify the contravention of minimum lot size standard. This decision addressed the previous provisions of State Environmental Planning Policy No 1 - Development Standards and held that a modest departure from a development standard is a basis upon which compliance with the standard can be seen to be unreasonable or unnecessary. However, in my view this principle is more appropriately directed to the test at cl 4.6(3)(a) of LEP 2013 which seeks to establish that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, rather than in determining that there are sufficient environmental planning grounds to justify contravening the development standard.
7. Further, in his submissions, in my view, Dr Smith seeks to reframe and bolster the reasoning of the grounds advanced in the written request. As held in RebelMH at [42], my consideration of the matters in cl 4.6(4)(a)(i) requires that I confine my consideration to the adequacy of the written request itself.
8. Clause 4.6 of LEP 2013 is a precondition that must be satisfied before consent can be granted. For the preceding reasons, I am not satisfied under cl 4.6(4) of LEP 2013 and consequently there is no power to grant consent to the development application, and the application must fail.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. Development application number DA/628/2022 seeking consent for the demolition of existing structures, Torrens title subdivision of the existing single allotment into two Torrens title allotments and the construction of a new dwelling on each of the proposed lots on the land at 82 Boronia Place, Cheltenham (Lot 12 DP 16855) is determined by refusal of consent. 3. The exhibits are returned with the exception of Exhibit 2, A, B and E. D Dickson Commissioner of the Court

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