Brendan Howell v City of Canada Bay Council

CASES CITED: Stockland Developments Pty Limited v Manly Council [2004] NSWLEC 472 (3 August 2004)

APPLICANT: Ms H Irish, barrister instructed by Mr J A Strati, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Avendra Singh Strati & Kam

RESPONDENT: Mr P M Jackson, solicitor SOLICITORS: Pike Pike & Fenwick

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10311 of 2005 - Brendan Howell v City of Canada Bay Council

1 This is an appeal under s 96 of the Environmental Planning and Assessment Act 1979, against the decision of the City Of Canada Bay Council (the council) to refuse a modification application of Development Consent No 486/04, for a two-storey attached dual occupancy dwelling house, to delete consent Condition 3 which prohibits subdivision of the land at Lot 9, DP 7156, being No 400 Lyons Road, Russell Lea. 2 I visited the land in company with the parties on the morning of the hearing. 3 I have concluded that the modification application must fail under s 96(2) of the Environmental Planning and Assessment Act 1979 as it would not be substantially the same development as was originally consented to. The land 4 The land is situated on the northern side of Lyons Road. The frontage of the land is 15.24m the depth is 45.72m and the area is 696m2. Erected on the land is a single two-storey dwelling house. 5 Nearby are other residential buildings set on regularly shaped allotments. Although the area is predominantly residential there are some commercial uses and multi-unit housing uses nearby. Relevant planning controls Drummoyne Local Environmental Plan 1986, (DLEP) 6 Under the provisions of the DLEP, the land is zoned 2(a) Residential and subdivision, as an innominate use, is permissible with consent. There are no applicable standards applying to the proposed subdivision under the DLEP. These are found in the development control plan. Drummoyne Comprehensive Development Control Plan 1999, (CDCP) 7 The council adopted the CDCP on 21 September 1999 effective from 13 October 1999 and last amended 13 July 2004 effective 20 August 2004, [Note: Exhibit 6]. Under the subdivision provisions of the CDCP a minimum allotment size of 450m2 and a minimum street frontage of 14m applies. 8 The objectives of the CDCP are to: [Note: Exhibit 6 p 6] · build upon the Drummoyne Local Environmental Plan 1986 by providing detailed objectives, performance criteria and minimum standards for residential commercial and industrial development; · foster ecologically sustainable development; · ensure development responds to the qualities of the subject site; · ensure development responds to the character of the surrounding neighbourhoods; · minimise negative impacts of development on the amenity of adjoining properties; · encourage innovative housing, commercial and industrial design; · maintain and enhance the natural, built and cultural significance of heritage items; and · provide a balance between flexibility and certainty in the assessment process; · ensure future developments will provide for a community that considers the needs of all people who live work and visit the Drummoyne area, including those people with disabilities.

9 There is an explanation under the heading 6.1 - residential development: Attached and detached dual occupancy have been re-introduced to promote housing affordability in the Residential 2(a) zone while maintaining the existing streetscape. Detached dual occupancies can be subdivided where the site area of 700m2 or more is available. 10 For residential development including subdivision the general objectives of the CDCP are to, [Note: Exhibit 6 p 46]: O1 encourage a mix of housing styles and types that complement Drummoyne's different urban characters; and O2 accommodate demand for additional housing in a way that reflects the character of Drummoyne; and O3 promote housing that incorporates the principles of ecologically sustainable development; and O4 encourage innovation in housing design; O5 minimise negative impacts of development on the amenity of adjoining properties; and O6 conserve the natural, built and cultural significance of identified heritage items and conservation areas; and O7 retain and enhance vegetation and significant trees to maintain the leafy character of Drummoyne. 11 Following these objectives are Table 6.1 and 6.2 that give an overview of the primary planning controls for several residential building types. Table 6.1 - Overview of primary planning controls for single dwellings, attached dual occupancy, detached dual occupancy and villa houses in Drummoyne. The minimum allotment size for attached dual occupancy is 450m2, minimum frontage 14m, FSR 0.5:1 in 2(a) zones only, site coverage 65%, minimum setbacks front, 4.5m or in line with adjoining development, rear 6m, side 900mm for single and 1.5m for two-storey, height two-storey, maximum unarticulated wall length of 12m and 40m2 private open space with a 5m minimum dimension and 1 resident car space per dwelling. There are also requirements for detached dual occupancy of minimum allotment size of 700m2 and 14 minimum frontage width, (excluding hatchet shaped blocks and 12m with rear lane access. The note following Table 6.1 reads: "Subdivision requirements for single allotments are included in Table 6.3". 12 Table 6.2 - Subdivision and allotment size has an explanation that, Subdivision is the division of land into two or more parts for separate occupation, use or disposition. Subdivision of land is usually followed by its development for one or more dwellings. Under the Environmental Planning and Assessment Act 1979, subdivision is defined as development. As such development consent is now required for all proposals involving subdivision. Objectives: O1 to ensure subdivision reflects and reinforces the predominant subdivision patter of the area; O2 to ensure that subdivision creates lots that are oriented where practicable to enable microclimatic management, including the application of energy conservation principles (see Part 3 of DCP); O3 to encourage a variety of lot sizes to promote housing choice. Performance criteria P1 lot size and dimension should be able to accommodate a dwelling and provide adequate opens space and car parking consistent with the relevant requirements of this DCP; P2 Lot size and dimension should take into account the slope of the land and existing vegetation identified in the site analysis (see Part 2 Understanding Drummoyne of the DCP); P3 Lot size and dimension must enable dwellings to be sited to protect natural or cultural features including heritage or cultural features including heritage items and retain special features such as trees and views. Minimum standards - subdivision M1 Table 6.3 - Subdivision - minimum area and frontage Allotment type Minimum area Minimum frontage to street Normal allotment 450m2 14m Hatchet shaped 450m2 (excluding access aisle) 4m

Please note: This minimum allotment size does not apply to approved dual occupancies. 13 Under the heading 6.5 Building envelope, Single dwellings and attached dual occupancy, the primary planning controls for several residential building types in Table 6.1 are reiterated, including, [Note: Exhibit 6 p 53-4]: M1 the minimum frontage of any newly created lot is 14m; M2 the site coverage of buildings on the site including garages, car ports and garden sheds is limited to a maximum of 65% of the site area. Following is the note that "…attached dual occupancies cannot be subdivided". Section 96 of the Environmental Planning and Assessment Act 1979 14 Under the provisions of s 96(2) of the Environmental Planning and Assessment Act 1979: Other modifications: (2) A consent authority may, on application being made by the applicant or any other person entitled to act on any consent granted by the consent authority and subject to an in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which that consent as modified relates is substantially the same development as a development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body within the meaning of Division 5 in respect of a condition imposed as a requirement of the concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of the consent, and (c) it has notified the application in accordance with: (i) the regulations, if the regulations are required, or (ii) a development control plan, if the consent authority is a council that has made a development control plan under section 72 that requires the notification or advertising of applications the modification of a development consent and (d) it is considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. (3) In determining an application of the modification of a consent under this section, the consent authority must take into consideration such other matters referred to in section 79 C. one as a right of relevance to the development the subject of the application. The proposal and its history 15 The proposal is to modify Development Consent No 486/04 to delete Condition 3 and to Torrens title subdivide the land into two allotments. The modification application was lodged with the council on 14 February 2005. The proposed subdivision plan prepared by Stephen Jones Associates is in Exhibit A 16 Development application No 486/04 was lodged with the council on 4 August 2004. The respondent council granted conditional consent on 13 August 2004 for a two-storey attached dual occupancy dwelling house on the land. Each dwelling house would be two-storeys in height with a floor space ratio, (FSR) of 0.5:1 and comply with the planning controls applying to the land. Condition No 3 was imposed on the consent and subdivision was specifically excluded. 17 Condition 3 is in the following terms: Subdivision: This approval does not include approval to subdivide the subject property. (Reason: Information). 18 The dwelling houses as part of the attached dual occupancy, under the original consent, have not been erected. The area of each proposed subdivided lot would be 348m2 with a frontage width of each of 7.62m. Notification 19 The modification application was not notified. However, the original application to erect two dwelling houses on the land was notified to nearby owners and occupants between 16 August 2004 and 30 August 2004, and the council received no submissions. The council's decision 20 By notice dated 24 March 2005 the council refused the application for the following reasons: 1. Pursuant to Section 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 the proposal does not comply with the minimum lot size and minimum frontage to the street contained within the Drummoyne Comprehensive DCP. 2. Pursuant to Section 79C(1)(c) of the Environmental Planning and Assessment Act 1979 the subject site is not suitable for subdivision as it would create undersized allotments that would not be able to accommodate future development in accordance with the applicable planning controls. The hearing 21 The appeal was filed on 7 April 2005 and is within time. 22 At the hearing the court heard evidence on behalf of the respondent council from: · Ms K Idle, Specialist Assessment Officer, Canada Bay Council, who also prepared the statement of basic facts. 23 No expert evidence was given on behalf of the applicant. The issues 24 On 17 May 2005 the council filed a statement of issues. Suitability of the site for subdivision 2. Whether the subject site has sufficient area and width to enable the proposed subdivision: Particulars: (a) The proposed development does not comply with the minimum allotment size and minimum frontage controls contained in Part 6.2 of the Drummoyne Comprehensive DCP which requires a minimum lot size of 450m2 and a minimum frontage to the street of 14m. The proposal is for two lots each with an area of 348.4m2 and frontages of 7.62m. (b) The proposed allotments will not be able to accommodate future redevelopment that will comply with the applicable planning controls.

Precedent 2 Whether the proposed subdivision, if approved, will act as an unsatisfactory precedent for future developments. Particulars: (a) There are a number of dual occupancy developments existing within the City of Canada Bay Council area, which may seek approval for Torrens title subdivision. (b) The proposed allotments are not consistent with the predominant subdivision pattern of the locality in terms of size and frontages, and approval of the proposed subdivision would lead to a negative change in the subdivision pattern and development character of the locality.

Validity of s 96 application 3 Whether the application made under s.96 of the Environmental Planning and Assessment Act 1979 can be properly made within the terms of that section, insofar as approval is sought to subdivide the subject property into two (2) Torrens title lots, which does not represent a modification of Development Consent No 486/2004 dated 16 December 2004.

25 The following emerged as the salient issues: · Is it the same development as was originally granted consent? · Is it appropriate to grant consent to the modification application and to subdivide under Torrens title the land having regard for the provisions of the CDCP? The evidence and findings Is it the same development as was originally granted consent? 26 The question of whether the development to which the consent as modified relates, is substantially the same development as the development for which consent was originally granted… is to be answered. Section 96(2) of the Environmental Planning and Assessment Act 1979 quoted above is central to this. 27 The original consent with Condition 3 added is for attached dual occupancy without subdivision. The modification application is for the same physical form of development of an attached dual occupancy with Torrens title subdivision. 28 Substantially the same, can be taken to mean being real or actual in respect to essentials, [Note: Macquarie Dictionary 2nd ed 1987]. There are various authorities on this point but each must be considered on its own facts. The parties here agreed that the question for me to answer is one of fact and does not involve a question of law. 29 The original consent is to be compared with the modification application. If one were to discount the physical building in each, as being a common factor, the original consent would be for an un-subdivided Torrens title parcel of land of 696m2 and the modification application would be for two Torrens title allotments half the size of the original lot or 348m2 each. Clearly the two applications involving subdivision could not be said to be 'substantially the same'. 30 If one were to weight the physical component of the development as being about 90% of the consent as a whole and the subdivision only 10%, it might be argued that a change in the subdivision pattern would not significantly affect the assessment of whether the two are substantially the same. In that case one might argue that the consent as modified would be substantially the same as the development that was originally consented to. 31 The truth may well lie between these two extremes. However, I prefer a position that gives equal or slightly more weight to the subdivision component than the physical development component and thus closer to the end of the spectrum that depicts the comparison of the two applications as being not substantially the same. 32 Also one could look to the planning consequences of an un-subdivided attached dual occupancy with one where each of the proposed new dwellings in the attached dual occupancy development are situated on a separate Torren title lot. In the first instance the ownership would be likely to remain in the hands of a single entity and in the second each dwelling in the dual occupancy might be owned be a single entity. In the first, it is likely that the physical form of the two dwellings in an attached dual occupancy would remain as an integrated whole, as proposed, and thus appear more like a single dwelling in the street and fit in with the desired future character. In the second instance, each individual owner might seek to 'individualise' their dwelling so that each dwelling would appear different and the development complex not as an integrated whole. Thus, there is the potential for different planning outcomes in each case, as a result of subdivision. Even if the attached dual occupancy were strata titled, the building owners' corporation might exert some control over the aspirations of each of the potential individual lot owners and so keep the development as an integrated whole and one that would better fit in with the streetscape. Significant 'improvements' to each dwelling would need the approval of the owners' corporation. 33 Consequently, I am satisfied that two applications are different and the development to which that consent as modified relates, is NOT substantially the same development as was originally consented to by the council. 34 Thus the Court does not have power to entertain that modification application under s 96 of the Environmental Planning and Assessment Act 1979, and the application must be dismissed. It is not necessary for me to further consider the application however, were I wrong in drawing the above conclusion that I do, I have considered the second question. Is it appropriate to grant consent to the modification application and to subdivide under Torrens title? 35 The council officer Ms Idle, referred the Court to Stockland Developments Pty Limited v Manly Council [2004] NSWLEC 472 (3 August 2004), and the decision his Honour McClellan CJ to give significant weight to the provisions of development control plans, in certain circumstances. Ms Idle urged the Court to give considerable weight to the subdivision provisions of the CDCP. 36 Ms Idle confirmed that, in respect of the provisions of the CDCP, the council had: · adopted the subdivision controls on site size and frontage width on 21 September 1999 after extensive public consultation and it has been in force since then; · consistently applied the subdivision provisions of the CDCP and no Torrens title subdivision of attached dual occupancies has been approved; · ensured that the provisions of the CDCP were compatible with the objectives and provisions of the environmental planning instruments applying in the area including the DLEP; · ensured that there are no significant flaws in the planning outcomes of the CDCP.

37 In interpreting the meaning of the CDCP, I must start by examining the intrinsic information contained in the instrument and apply the ordinary English meaning of the words. 38 Interpretation is hampered by conflicting information contained in that the notes to that instrument. Mr Jackson submitted that the Court should interpret the CDCP disregarding the notes in cl 6.2 - Subdivision and allotment size, to the effect that "…This minimum allotment size does not apply to approved dual occupancies (see Table 6.1)," and cl 6.5 Building envelope, to the effect that "…Attached dual occupancies cannot be subdivided." 39 Ms Irish submitted that to interpret the CDCP it is necessary to have regard to those notes. For my preliminary interpretation of the CDCP, I have not taken into consideration the above notes. 40 Under Table 6.3 under the heading of subdivision and allotment size we are told that the minimum area of a normal allotment is 450m2 and a minimum street frontage is 14m. 41 Under Table 6.1 we are told that the minimum area for an attached dual occupancy is 450m2 with a minimum frontage of 14m (excluding hatchet blocks). Also for detached dual occupancy development the minimum area is 700m2 with a minimum frontage of 14m (excluding hatchet blocks) or 12m with rear lane access. This suggests, in the absence of any other information, each individual dwelling lot in a detached dual occupancy would have a minimum area of 350m2 and by extension each individual dwelling lot in an attached dual occupancy would have a minimum area of 225m2. 42 Given that no distinction is made in the CDCP, between the various forms of subdivision, an applicant for either an attached or detached dual occupancy development might expect to subdivide land that meets the minimum requirements of cl 6.1 either by strata title, Torrens title or community title. 43 As an attached dual occupancy development, the present proposal would comply with cl 6.1 and Table 6.1 at p 47 of CDCP in Exhibit 6. The allotment area of 696m2 is greater than the minimum required of 450m2 and the frontage is 15.24m and greater than the minimum of 14m. The proposal almost meets the minimum allotment area of 700m2 for a detached dual occupancy development. There was no dispute between the parties that the physical form of the approved attached dual occupancy reflected the desired future character of the area. 44 Thus, as the applicant originally applied for the subdivision of the attached dual occupancy that meets the minimum requirements under cl 6.1, he might have expected that the council would have dealt with it and approved that subdivision without Condition 3. Instead the council consented to the application on condition that it did not include approval to subdivide the subject property. 45 Mr Jackson, somewhat surprisingly, submitted that although the council has refused the Torrens title subdivision of the subject land, it would not oppose the strata titling of the approved attached dual occupancy development. One must question the logic of this submission, when the CDCP, does not distinguish between strata and Torrens titling and the instrument simply refers to 'subdivision' per se. It is common practice to include under the subdivision umbrella the different forms of subdivision, being Torrens title, strata title and community title. The only form that might be excluded is leasehold subdivision. 46 Interpreting the CDCP with the notes included might lead to a different interpretation. 47 The note to cl 6.2 - Subdivision and allotment size, states "…This minimum allotment size does not apply to approved dual occupancies (see Table 6.1)." One goes to Table 6.1 to find the minimum requirements for size of allotments and frontage as described above, of 450m2 and 14m respectively for attached and 700m2 and 14m respectively for detached dual occupancy development. Clause 6.2 reiterates the requirements for at least an attached dual occupancy by describing the minimum area of an allotment of 450m2 and frontage of 14m. So one might be forgiven for thinking that for an attached dual occupancy if the minimum area of 450m2 and minimum frontage of 14m was met the application would comply despite the note. 48 The note to cl 6.5, p 54 - Building envelope, states, "…Attached dual occupancies cannot be subdivided." As Ms Irish points out this is not a subdivision control but a building envelope control note, so one must question its application to subdivision. Also, what is the logic of the council allowing detached dual occupancy development to be subdivided and not allowing attached dual occupancy development to be subdivided. If the attached dual occupancy development were to meet at least the same minimum requirements as detached dual occupancy development, why should it not be capable of being subdivided. Here the proposed attached dual occupancy development would be on a lot of 696m2 only 4m2 short of the minimum allotment size for detached dual occupancy development. Also the attached dual occupancy development would avoid the waste of space between buildings for side setbacks making better use of the area of the allotment. 49 As the respondent council granted conditional consent on 13 August 2004 for the two-storey attached dual occupancy dwelling house on the land, the applicant has until 13 August 2005 to lodge an appeal under s 97 of the Environmental Planning and Assessment Act 1979. It might be appropriate to grant consent to the modification application and to subdivide under Torrens title. That is a matter for another day. 50 For the above reasons, the appeal under s 96 of the Act is dismissed. Orders 51 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Modification application No 486/04, to delete Condition 3, which excludes subdivision, for a two-storey attached dual occupancy dwelling house consent, at Lot 9, DP 7156, being No 400 Lyons Road, Russell Lea, lodged with the respondent council on 14 February 2005, is refused consent.

3. The exhibits with the exception of Exhibits A, 1 and 2 are returned.

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