28In addition, group homes are permitted with consent in both the R1 and R2 zones and multi-dwelling housing, hostels, and respite day care centres are uses permitted with consent in the R1 zone.
29The only use common to all three zones is that of a dwelling house and it is clear that the 2(a) zone permits a greater number of land uses (25 in total) than that prescribed in the Standard Instrument in either the R1 (15) or R2 (3) zones. Comparing the R1 and 2(a) zones, uses common to both zones are childcare centres, community facilities, dwelling houses, places of public worship, rowhouses and villas (attached dwellings). A comparison of the R2 and 2(a) zones shows dwelling houses and home offices/businesses/occupations are common however the variation in the number of permitted uses is wide. The Court accepts that it is likely that any council, when adopting its local environmental plan, would add uses to those uses mandated by the Standard Instrument however, that is not a matter that I need to consider. My consideration is limited to that required under clause 5(1)(b).
30That consideration takes into account the land uses (plural) that are permitted and therefore, regard must be had of the set of uses rather that a direct comparison with individual uses. I have also considered the number of uses, and the nature of those uses however, in my opinion, either manner of assessment would lead to the same conclusion that the 2(a) zone is not equivalent to either the R1 or R2 zones under the Standard Instrument.
31Mr Rigg, for the applicant, relied on the decision of Tuor C in Chami v Bankstown City Council NSWLEC 1311 in which the precise question of equivalent zone was considered. On that occasion, the Commissioner concluded the 2(a) zone was equivalent to the R2 zone and, after merit review of the application, upheld the appeal. Mr Rigg urges the Court to have regard to that decision for the sake of comity.
32Consistency in approach is an important consideration in any procedings and has been considered on a number of occassions. Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 provides some guidance and in particular, relevant considerations are:
95 Furthermore, I am in no way convinced that in the context of adversarial proceedings in the Land and Environment Court, there is any place for the so-called principle of consistency in administrative decision-making. As I have observed in [51] above, that concept is more appropriately applied to true administrative decision-making at the level of executive or local government. It has no application to adversarial proceedings where the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties.
96 My only qualification to the foregoing, at least in the context of environmental planning, is that consistency in the application of planning principles is, clearly, a desirable objective. This has been recognised by the Commissioners of the Land and Environment Court (see [16] above) and is reflected in the planning principles articulated by Commissioner Watts in [81] of his judgment (see [15] above). In the present case, the planning principles in question were common to both appeals and were duly taken into consideration by each Commissioner. But it does not follow that a consistent application of those principles results in the same outcome. That would depend upon the particular facts of each case as well as upon the evidence called by the parties to support the outcome, based on those principles, for which each contends. This is particularly so when dealing with heritage issues such as the acceptability or otherwise of the impact of a particular proposal upon the heritage significance of a heritage item which clearly involves a value judgment of a particularly subjective kind. Commissioner Watts made that judgment in the present case and his reasons for coming to that conclusion were more than adequately expressed.
33In this appeal, the Court is obliged to undertake a review of the issue of equivalence. I have reviewed the decision in Chami and note that the Commissioner has undertaken a thorough and comprehensive review of the issues, particularly having regard to proper planning principles. However, I consider that, as required under clause 5(2) of SEPPARH, the assessment under subclause (1)(b) applies only in respect of the particular development that is proposed to be carried out and more than one such assessment may be made in respect of the same land use zone. There is an obligation to consider the matter on each occasion an application is before a consent authority. In making my determination on the issue, I do not consider that it is necessary to go beyond considering the permitted uses within the two zones. Accordingly, I am of the view that what is required is that I must form an opinion as to whether the 2(a) zone is a land use zone in which equivalent land uses are permitted, in this case the Residential zones in the Standard Instrument. For the reasons stated above, I have found that they are not. This finding means the development application must fail as the proposed use is prohibited in the 2(a) zone and the provisions of SEPPARH do not apply to the land to which the application relates.
34However, if I am wrong, I provide a merit assessment of the remaining contentions on the contingency that the matter should be able to be dealt with between the parties by bringing orders back to me (if I am found to be incorrect and there is a remitter), that being consistent with the objectives of the Civil Procedure Act 2005 for the just, quick and cheap resolution of the issues in dispute between the parties. In this regard, the application meets all of the relevant controls under SEPPARH. The application is an existing application for the purposes of the amending SEPP and, apart from the parking requirement, would also comply with the controls contained in that policy.
35Having regard to the local area, I find the design of the development is compatible with that character. Firstly, because the development has been designed to appear as a single dwelling house and fits within the existing streetscape. I agree with the experts that the bulk and scale, site layout, car parking provision, provision of open space and general presentation of the proposed development is compatible with the prevailing local character of the area. Whilst the issue of function also plays a role in determining the character of an area, I do not accept Mr Bushby's evidence that because lodgers will stay for short periods of time and may not be known to neighbours that this contributes to a different character in the area. I also do not accept the comparison of density as he is comparing dwelling units to what are essentially bedrooms. It was agreed between the experts that the council's planning controls would permit the construction of a dual occupancy development on the site and that such a development could, subject to compliance with all relevant controls, contain a total of 10 bedrooms. Accordingly, the occupancy of the development could be similar.
36I am satisfied that the final Plan of Management and the agreed conditions of consent are appropriate and that consent could be granted if the land was found to be in an equivalent zone and the provisions of SEPPARH were applied. I consider that the savings and transitional provisions should be applied consistent to the reasons provided by Tuor C in Huang & Lei v Parramatta City Council [2012] NSWLEC 1077 where the Commissioner says:
24In exercising the discretion, I acknowledge that the normal purpose of a saving clause is to have a savings effect on an 'existing application' by not introducing retrospective controls that are determinative. It preserves a developments permissibility while enabling a consideration of an application's consistency with the planning approach sought by the new controls. It would appear to be fair and reasonable that an application, which was permissible at the time of lodgement, should not be rendered impermissible by a new instrument. Rather a consideration of the merits of the application, under the Original SEPP ARH, including an assessment of the compatibility of the design with the local area, should be undertaken.
25In the circumstances of this case and in exercising the discretion under cl 54A(2), I find that the application should be determined as if the amending SEPP had not been made.
37The fact that the site would not be within an accessible area as defined in the amending SEPP due to the fact that on Sundays and public holidays, the requisite bus would arrive around 6 minutes earlier than required is not, in my opinion, reason to reject the application and the discretion to apply the provisions of SEPPARH should apply.
38Despite my findings on the merits of the application, consent cannot be granted as a boarding house is prohibited in the Residential 2(a) zone under the provisions of the LEP and the provisions of SEPPARH do not apply to the land.
39The Orders of the Court are:
(1)The appeal is dismissed.
(2)Development Application DA192/2011, which proposed the demolition of an existing dwelling and associated outbuildings and construction of a 10 room boarding house at 172 Hillcrest Avenue, Mount Lewis, is refused consent.
(3)The exhibits, other than exhibits A and 4 are returned.
Sue Morris
Commissioner of the Court
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Decision last updated: 21 May 2012