8 Clause 9 of RLEP requires Council to consider the extent to which the proposed development is consistent with the general aims of the plan and the specific objectives of the zone within which the development is proposed, prior to granting any consent.
9 The Zone No 2A objectives include:
(a) to maintain the character of established areas, and
(c) to enable redevelopment for low-density housing forms, including dwelling houses, dual occupancy, semi-detached housing, and the light, where such development does not compromise the amenity of the surrounding residential areas and is compatible with the dominant character of existing development, and
(e) to enable a mix of housing types to encourage housing affordability.
10 The minimum allotment sizes stated in cI 30 (1) for Zone No 2A is 450 sq m. Also relevant is:
30(4) The minimum allotments size for the erection of a dwelling house or for an attached dual occupancy within Zone No 2A is 450 square metres and each allotment must have a frontage of least 12 metres.
11 Insofar as the consistency of the application with the minimum 450 sq m lot size is the threshold issue, whereby the proposed Lot 11 has a 14% deficiency and Lot 12 has a 25% deficiency, I note the applicant's reference to the consolidated RLEP operating from 15 December 2010, where the minimum lot size has been reduced to 400 sq m. But this consolidated LEP contains the following savings clause 7:
(1) Any development application lodged but not finally determined prior to the appointed day will continue to be assessed and determined under the provisions of the environmental planning instruments that were in force immediately before the commencement of this plan.
(2) However, when determining an application to which this clause applies, the Council must have regard to the provisions of this plan as if it had been exhibited under the Act but had not been made.
12 Consequently, the relevant development standard is the 450 sq m minimum lot area. The SEPP 1 Objection acknowledges this development standard and identifies from the RLEP the following purpose:
Purpose: To establish minimum requirements for the subdivision of land within residential zones in order to protect and enhance local amenity.
13 The SEPP 1 states that:
+ Whilst the proposal does not meet the minimum allotment sizes, nevertheless the proposed allotments are consistent with the general lot size pattern in the locality.
+ Presumably council considered the lot size suitable for 2 dwellings when it approved the dual occupancy development in 2003, on the basis that they would not to impinge on the residential amenity of the surrounding area.
+ As the proposed lots are generally larger than many lots near the subject site, the proposed subdivision to create separate allotments for each of these dwellings will not result in any change to the built form on the site.
+ The proposal is therefore consistent with the purpose of the standard in that will have no unreasonable impact on the amenity of the area.
14 In the consideration of whether non-compliance with the development standard will hinder the objectives specified in section 5 (a) (i) and (ii) of the EPA Act, it is stated that by allowing each dwelling to be on a separate title, Torrens Title subdivision of the existing allotment will allow for a more economically beneficial situation compared to retaining 2 separate dwellings on the same lot. Therefore, the proposal satisfies both the relevant part of these objectives.
15 The SEPP 1 concludes that strict compliance with the development standard is unnecessary as the proposal is consistent with the purpose of the development standard and will have no impact on the built form and character of the surrounding area. Also, given the fact that the proposed subdivision is located on the corner site, and will create allotments some three to four times greater than the minimum frontage standard for subdivision, strict compliance with the lots standard is considered unreasonable.
16 In his evidence, Mr Neustein further supports the proposal on the basis that:
+ The proposal is compliant with the purpose of the minimum allotments size standard, as it would have no impact on the amenity and character of the locality because there will be no change to the built form as a result of the subdivision.
+ In other dual occupancies, it is common that each house is on an area of about 250 sq m and accordingly the proposal provides adequate amenity.
17 However Mr Harding opposes the application on a number of grounds including that on his analysis of the neighbouring lot sizes, that the average is in the order of 451 sq m and consequently the proposed lots are deficient in terms of the prevailing lot sizes.
18 Mr Harding says that it is important to consider the background reviews of a number of strategic and statutory components of the LEP that council has undertaken in adopting the prevailing development standard. This includes council's recognition that there should be allowance for appropriate dual occupancies on smaller lots, in order to contribute to the variety of housing supply and subsequently achieve the desired amenity outcomes.
19 The strategic review 2005 included an Issues Paper - Dual Occupancy and Subdivision Review, which is attached to Exhibit 2. This generally overviewed the various lot sizes and availability for subdivision in the 2A zone to assess future residential subdivision options to achieve the desired housing outcomes for the area.
20 The report found:
Investigation was carried out on the capability of the ensuing 450, 400 and 350sqm allotments (from 900, BOO and 700 respectively) for accommodating a single dwelling of appropriate modern standard (see Figure J in the Issues Paper). This shows that as the land size decreases it becomes harder to achieve two dwellings on 350sqm allotments with good design outcomes (for example, providing for the parking in the design, & the percentage of hard paved surfaces increase). The 400sqm allotment achieves two dwellings that are more acceptable, This scale of subdivision would be on average 10% smaller than the average subdivision patterns, thus generally not likely to adversely affect these patterns. Assessment indicates that the 400sqm allotments can accommodate a single dwelling closer to modern proportions whilst meeting the general requirements of good design, including streetscape impact and sufficient parking provision, whilst providing a slightly higher opportunity for subdivision in the low density residential areas, A reduction to BOOsqm is also consistent with the original recommendations in the draft LEP 1998 report. Altering the minimum subdivision allotment size requires amendment to the Randwick LEP 1998.
21 From reference to the report, it seems to me that there has been comprehensive consideration of various lot size options with findings that 400 sq m allotments can comfortably accommodate modern dwellings while meeting good design criteria, so as to achieve the appropriate amenity outcomes for the area.
22 Insofar as this standard was not adopted at the time and the 450 sq m minimum lot size was maintained, nevertheless the results of the review indicate that an appropriate dwelling could likely be erected on a 400 sq m lot so as to achieve a reasonable level of amenity in the Residential 2A zone. I note that this standard has subsequently been adopted in the current consolidated RLEP but this is not the prevailing control in this matter.
23 Considering the disparate opinions expressed by the planners, I consider that some weight could be given to these findings that the minimum lot size to achieve the desired amenity outcomes for the area is 400 sq m.
24 Notwithstanding this, in joint conferencing the planners agreed that:
The minimum allotments size development standard seeks to define the character of the 2(a) zone by allowing a certain size and shape of development allotments of a particular size. This defines the scale of development in the zone and in doing so seeks to ensure uniform outcomes for allotments including building footprint, setback, open space and building envelope. One underlying objectives of the standard is to facilitate a uniform level of design outcomes for the provision of single detached dwellings in Council's low density zone.
There is a further objective to limit the nature of subdivision for single detached dwellings so as to allow the creation of a form of development that promotes two dwellings on a single allotment and possibly under one ownership. This is said to provide for a wider variety housing types, catering to an extended family or rental situation as distinct from speculative and individual ownership that results from allowing titling to such allotments.
25 It is apparent then that the detailed planning analysis indicates that land can be subdivided into allotments with a minimum area in the order of 400 sq m so as to achieve the desired level of amenity in the neighbourhood. Therefore some regard can be given to this, in accordance with the savings provisions in the RLEP.
26 From his consideration of the SEPP 1 objection, Mr Harding does not consider it meets the underlying objective or zone objectives so as to demonstrate that compliance with development standard is unnecessary or unreasonable. In this regard he refers to the various tests for SEPP 1 objections, particularly those set out by the Chief Judge in Wehbe v PittwaterCouncii [2007] NSWLEC 827.
27 The Chief Judge considered ways of establishing that compliance is unreasonable or unnecessary including:
42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: see SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 379; Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, pp 16, 18 and 20; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 406-407, 412-413; Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGRA 438 at 441; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Leighton Properties Pty Ltd v North Sydney Council (1998) 98 LGERA 382 at 386; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282-283; Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217 at 220-221; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 88[25J - 89[28J and Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 387 [20J-[21].
28 Insofar as 4 other ways were identified, they have not been identified as relevant in this case. Interestingly, Wehbe dealt with a SEPP 1 objection to various minimum subdivision lot sizes. The development standard specified the various minimum lot sizes required to achieve the aims of the clause. The aims included to "improve residential amenity" and "enhance the environment".
29 It seems to me that these aims are similar to those in the RLEP where the minimum lot size of 450 sq m is prescribed to "protect and enhance local amenity".
30 In dealing with the aim "to improve residential amenity, His Honour said:
68 I am not satisfied by this ground for two reasons. First, the second aim of clause 11 is to "improve the residential amenity". That aim is to be achieved, according to the clause, by having allotments of the size specified for the locality. Again, the aim is descriptive of the result achieved by the clause fixing varying allotment sizes depending on the locality of the land to be subdivided and the type of allotment created by the subdivision. For land within zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chi/tern Road, Ingleside, the locality of relevance in this case, the planning policy embodied in the clause is that residential amenity will be improved by fixing a minimum allotment size of 700 square metres rather than the smaller allotment sizes considered to be appropriate for land in the other locality, being in zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale.
69 Viewing the second aim this way, granting consent to the proposed subdivision which creates allotments each of 514 square metres does not achieve the second aim of the clause which is to afford to land within zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltein Road, Ingleside, the improved residential amenity that comes from having a minimum allotment size of 700 square metres, rather than the smaller allotment sizes fixed for land in the other locality, being in zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale.
70 Secondly, the original SEPP 1 objection does not establish, as it would need to, that the proposed subdivision will result in the level or degree of improved residential amenity that would be afforded by allotments that complied with the minimum allotment size of 700 square metres. The original SEPP 1 objection ,asserts that the proposed allotments of 514 square metres could reasonably accommodate new dwellings, which would provide a high level of amenity to future occupants, without compromising the amenity enjoyed by adjoining owners. This does not establish that this level of residential amenity for occupants or adjoining owners is equal to or better than the residential amenity to occupants or adjoining owners that would result from an allotment that conforms to the minimum allotment size of 700 square metres. Unless this is established, the applicant cannot discharge the onus of showing that the proposed subdivision achieves the second aim of the clause establishing the development standard to "improve residential amenity".
31 Applying this approach to the subject application it seems to me that the designated minimum of size of 450 sq m is what is considered necessary to 'protect local amenity'. I do not consider any compelling evidence was presented in the SEPP 1 to show how the development by way of the considerably smaller lots would protect the amenity of the area.
32 In this regard, I give diminished weight to the submission that the prior approval of the dual occupancy with the smaller "effective site areas" establishes a level, which protects the local amenity and that the subdivision merely maintains this.
33 I accept that the zone objectives encourage a range of housing developments including dual occupancies and dwelling houses so as to address a number of issues including tenure and housing affordability. Obviously it is likely that these different housing forms will create different amenity impacts. The review documents acknowledge this and state that generally dual occupancy have greater impacts than a dwelling house due to higher occupancy rates on the same land.
34 Accordingly, I note council's submission that the amenity impacts can relate to both internal and external impacts. It therefore seems to me that whilst the amenity impacts of the current development have been deemed acceptable by council, I then accept the submission that the internal impacts of a dual occupancy development, with the smaller "effective lot areas", can be better managed by the retention of the one title whereby the closer proximity of the various elements of the development are under one ownership control. I consider the management of use and amenity of the smaller lots would be diminished with the approval of the subdivision and is therefore a negative aspect of the proposal.
35 The other significant component of the purpose/objectives of the development standard in the subject matter refers to 'enhance local amenity'. This concept was also addressed by the Chief Judge in the following terms:
71 The third stated aim of clause 11 is to "enhance the environment". The original SEPP 1 objection states that each of the proposed allotments to be created by the proposed subdivision is capable of supporting a dwelling house to be constructed in a manner that responds to the site circumstances and characteristics. The proposed subdivision, it is stated, will not adversely impact the environment.
72 This ground is unpersuasive for three reasons.
73 First, the planning policy adopted by the clause is that the environment will be enhanced in relation to land within zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chi/tern Road, Ingleside, by fixing a minimum allotment size of 700 square metres rather than the smaller allotment sizes fixed for land in the other locality, being in zone 2(a) or 2(b) generally south of Mona Vale Road, Ingleside and Mona Vale. Granting consent to allotments of 514 square metres does not achieve this third aim to enhance the environment by having a larger allotment size of 700 square metres for land in zone 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chi/tern Road, Ingleside.
74 Secondly, the original SEPP 1 objection does not establish that the proposed subdivision will result in the level or degree of enhanced environment that would occur by allotments that complied with the minimum allotment size of 700 square metres.
75 Thirdly, it is not sufficient merely to point to an absence of environmental harm: see Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 411-412; Hooker Corporation 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; and Memel Holdings Pty Ltd v Pittwater Council [2001] NSWLEC 240 (17 October 2001) at [102].
36 Applying this approach to the subject matter, it seems to me that the various elements comprising the amenity of this area will be enhanced by the provision of the minimum site area (Le. 450 sq m) in new developments. But the proposal is significantly deficient in this regard, particularly Lot 12, with a proposed area of 339 sq m. The SEPP 1 appears to rely on the absence of environmental harm rather than demonstrate how the proposal enhances the local amenity. I do not consider this sufficient to allow the SEPP 1.
37 The Chief Judge concluded that:
79 If the SEPP 1 objection to compliance with the development standard in clause 11 (2) were to be upheld for subdivision of this land on the grounds given in the original SEPP 1 objection, there would be little justification for not also upholding SEPP 1 objections to subdivision of land of similar size and nature in the locality. These grounds are of a general nature and would be applicable to many sites in the locality. They are not particular to the circumstances of this land. The ad hoc deviation from the development standard in this case on these grounds would, therefore, create an adverse planning precedent for similar action to be taken in relation to other such land. This would affect the integrity of the planning policy embodied by clause 11. This would not be an appropriate use of the dispensing power under SEPP 1: see Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001) at [112(ix)] and [113]. 80 For these reasons, the original SEPP 1 objection has not established that each of the aims of the development standard would be achieved by the proposed subdivision notwithstanding non-compliance with the development standard in clause 11(2). Accordingly, I am not satisfied that the original SEPP 1 objection is well founded.
Conclusions
38 Having considered the evidence, the submissions and undertaken a view, I do not consider the SEPP 1 objection to the minimum lot size development standard should be allowed so as to grant consent to this application. From the submissions for council, I accept that the ways of assessing a SEPP1 objection identified in the matter of Wehbe are relevant in the subject matter. As detailed previously, I do not consider the SEPP 1 has shown that the compliance with the minimum lot development standard is unnecessary or unreasonable.
39 On the contrary, it appears to me that there has been considerable investigation and strategic planning to amend the controls to reduce the subdivision lot sizes to 450 sq m for dwellings in this 2A zone in order to achieve desired level of local amenity. I consider that the public interest is generally well served by the adherence to the adopted controls. In this regard, I have also taken into consideration the reduced 400 sq m site area now allowed under the consolidated RLEP, but the application still does not demonstrate reasonable compliance with both lots being deficient.
40 Insofar as the dual occupancy was approved, I accept that there may be a different level of amenity outcome for such developments as compared to separate Torrens Title subdivisions but this is to be managed within the one ownership. Consequently, I am not satisfied that the SEPP 1 has adequately demonstrated how the 2 dwellings on the separately titled lots will protect and enhance local amenity.
41 In line with the determination in Wehbe, I am satisfied that the public interest is well served by requiring adherence to the development standard in this case, unless a compelling case is made out.
42 Apart from this, clause 9 of the RLEP requires consideration of the general aims of the plan, which particularly identifies encouraging housing mix and tenure choice and the retention of affordable housing. Whilst there were disparate Opinions from the planners regarding cost - effectiveness of the competing housing outcomes in this case, I am inclined to rely on Mr Harding's opinion that the retention of the dual occupancy better satisfies these aims by allowing for extended family use, rental or other affordable options, when balanced against the personal gain achieved by the approval of an additional lot.
43 Clause 9 also requires consideration of the zone objectives, which in addition to the consideration of amenity impacts, requires a mix of housing types to encourage housing affordability. From reference to the strategic analysis and Mr Harding's evidence, it seems that whilst there is a significant number of allotments that satisfy the area criteria for dual occupancy, other constraints such as frontage and access will likely limit opportunities. I think these further support the retention of the approved dual occupancy.
44 I also note that the dual occupancy has not been completed in respect of the works on the original dwelling to satisfy the attached dual occupancy conditions. Whilst further conditions have been offered to require completion of these works, it is nevertheless possible that in the future an application could be made to separately redevelop this undersized lot. Based on the application of the current controls, I do not consider the ad hoc allowance of the proposed subdivision represents economic or orderly development, or that it would be in the public interest.
Court orders
45 The orders of the Court are:
1. The appeal is dismissed.
2. The SEPP 1 objection to the minimum lot size development standard in clause 30(1) of the RLEP is disallowed.
3. Development consent for a 2 - lot Torrens Title subdivision of 31 Fischer Street, Kingsford is refused.
R Hussey
Commissioner of the Court