Choker v Georges River Council

Choker v Georges River Council - [2022] NSWLEC 1415 - NSWLEC 2022 case summary — Zoe

[6]

Issues

It seemed to be agreed that the principal issue in this case was that of the proposal's non-compliance with the minimum lot size controls for dual occupancy development under HLEP. As indicated above, in HLEP's Lot Size Map the site is marked "K" and, in turn, cl 4.1A requires a site area of 1000m2 or greater for dual occupancy. The site has a site area of only 929m2.
Mindful of a general concern that, given the breach of cl 4.1A of HLEP, the proposal constituted overdevelopment; concerns were also raised by Council in regard to design-related matters, having a mind to cl 6.4 of HLEP, which applies to land (such as the site) falling within the FSPA, and provides relevantly as follows: (1) The objectives of this clause are - (a) to recognise, protect and enhance the natural, visual, environmental and heritage qualities of the scenic areas of Hurstville and the Georges River, (b) to protect significant views to and from the Georges River, (c) to reinforce the dominance of landscape over built form. ... (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered how the development would - (a) affect the natural environment, including topography, rock formations, canopy vegetation or other significant vegetation, and (b) affect the visual environment, including the views to and from the Georges River, foreshore reserves, residential areas and public places, and (c) affect the environmental heritage of Hurstville, and (d) contribute to the scenic qualities of the residential areas and the Georges River by maintaining the dominance of landscape over built form.
Further particular concerns were raised in regard to the following:

Internal amenity - particularly in respect to solar access and privacy
External amenity - particularly in respect of the visual massing and side setbacks
Unsatisfactory landscaping in the front setback and insufficient landscaped area under HDCP and having regard to the provisions of the GRDCP, seen as likely to shape future character.

Town planning experts were engaged by each of the parties to assist the Court: J Mead was appointed by the applicant and J Vescio was appointed by Council. Arboricultural and landscape experts were also engaged: S Sutton was appointed by the applicant and C Kenworthy was appointed by Council.

[9]

External amenity

Council was concerned that the side elevations were visually imposing and lacked a considerate design resolution, and that there was deficient side setbacks (inadequate for landscaping) and insufficient stepping down in line with existing topography.
Mr Vescio's concern related to the 28m length of the building which he believed provided an unreasonable visual massing and adverse impact on the immediate neighbours. Mr Vescio referred to certain provisions of GRDCP which he indicated would require a 1.5m side setback at the ground floor level (Ex 5 par 3.16): … to "provide opportunities for landscaping" and "separation between buildings consistent with the desired future character and rhythm of built elements on the street" and as required by the landscaping controls in s 3.3.4 of the GRDCP: v. Provide planting within setback zones (setbacks identified within the relevant applicable parts of the DCP); vi. Soften the visual impact of buildings, carparks and roads; ix. Screen undesirable elements;
A key factor for Mr Vescio was that these impacts were being brought about because the applicant was seeking to "place two dwellings on a site identified as suitable for only one dwelling" (Ex 5 par 3.17). As such it was at odds with the Court's planning principle relating to assessing impacts on neighbouring properties (Davies v Penrith City Council [2013] NSWLEC 1141 (Davies) at pars 116-121, which raises the following questions: "How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? How necessary and/or reasonable is the proposal causing the impact? How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?"
Mr Mead pointed to the proposal's direct compliance with the side setback requirements of HDCP and indicated the agreed position of the experts that GRDCP did not apply. He referenced the provisions of s 4.15(3A)(a) of the EPA Act which provide that a consent authority cannot require more onerous standards than those otherwise set within a development control plan. But moreso, I agree with Mr Mead's point that there are reasonable setbacks and reasonable visual articulation and modulation embodied in the proposed design. This is through the courtyard indentation at the ground level where two shrubs, up to 2.5m high would be located, and then the mix of fenestration, indentation and materials, more generally. The proposal also complies with the relevant height controls, and in having regard to this, I see the proposal as adequately responding to site topography, as a factor in perceived visual massing.

[11]

Contravention of minimum lot size for dual occupancy standard

The applicant is seeking an exception for the contravention of the development standard at cl 4.1A of HLEP, by way of cl 4.6(2) of the same instrument. The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3)-(5): (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.
Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding a development standard contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at par 14).
The first opinion is in regard to a written request from the applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
In this instance, the applicant has opened the door to application of cl 4.6(2) by submission of a written request seeking to justify the contravention. The written request was prepared by Planning Ingenuity and is dated 21 June 2022 (written request). The written request was marked Ex D in the proceedings.

[12]

Whether compliance unreasonable or unnecessary

Mindful of cl 4.6(3)(a) of HLEP, the written request seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first "Wehbe way", seeking to show how, otherwise, the development achieves the objectives of cl 4.1A of HLEP.
The objective of the standard is at cl 4.1A(1) of HLEP, which provides as follows: The objective of this clause is to achieve planned residential density in certain zones.
The written request looked at two interpretations of the objective. The first was that the objective was concerned with achieving planned residential density in terms of the built form outcomes. The second was that the objective related to achieving planned residential population density outcomes.
In regard to achieving planned residential density with respect to built form outcomes, the written request noted that the proposal was some 7.8% below the applicable floor space ratio control. It was also argued to meet relevant standards under HLEP and HDCP in regard to the following (Ex D p 7): "Height of buildings; Maximum wall height; Front setback; Side setback (ground and first floor); Rear setback (generally 18.8m greater setback than requirement); Car parking; Landscape area (exceeds minimum by 30m2); Private open space (332m2 of additional POS beyond minimum requirement); Native tree inclusion (11 additional native trees proposed beyond minimum requirement, as well as 7 trees retained); Solar access to proposed dwellings complies; Overshadowing impacts on neighbouring properties complies."
It was argued that the contravention of the minimum lot size control would not be perceptible when viewed either from the Johnstone Street area or the Georges River environs, from where experts agreed during the site inspection that the site is not visible.
In regard to achieving planned residential density with respect to planned population density outcomes, the written request argued there would be a negligible difference to population density outcomes when compared to the potential occupancy of a residence of the same or greater floor area as is a permissible outcome. It was argued that there was no implication for services or infrastructure planning, especially given that immediately opposite the site along the eastern side of Johnstone Street, dual occupancy was permitted on 650m2 lots.

[13]

Consideration

The objective of cl 4.1A of the HLEP is to achieve planned residential density, in this case, within the R2 Low Density Residential zone. The written request's approach, to sub-aggregate the residential density topic into built form density and population-based density, is reasonable. On the evidence, it seems clear enough to me that the proposal, as now amended, does meet relevant built form standards that might, otherwise, suggest built form outcomes as an aspect of planned residential density in the applicable R2 zone. For example, the FSR, building envelope and landscaping provisioning, as proposed here, would seem to be readily approvable as a single residence on the site.
If the focus of the objective of cl 4.1A of HLEP is residential population density, an approach Council prefers according to its closing submissions, again the case is made in the written request. Council argues that the objective relates to planning for infrastructure and similar strategic intentions. However, I see the effects of the difference involved in this case, with respect to any planned population density as clearly negligible. I note the arguments of Mr Vescio that there are some 190 properties located within the lands identified "K" in HLEP which are less than 1000m2 and "which are within a 10% deficiency" (noting the site as having around a 7.1% "deficiency" with respect to the 1000m2 control). However, it cannot be reasonably expected that all of these property owners might be interested in dual occupancy development. But moreover, it is reasonable to expect planned residential population density within HLEP's R2 zone would reasonably build in variations of a considerable scale to reflect localised nuances.
The written request adequately demonstrates that the objectives of the development standard have been achieved notwithstanding non-compliance with the minimum subdivision lot size controls. It follows that, if the goal is the achievement of the objective, in this instance it is unnecessary to require strict compliance with the numerical standard. It would also be unreasonable to require strict compliance in that no purpose would be served. In turn, and in accordance with the first Wehbe way, I find that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case.

[14]

Whether there are sufficient environmental planning grounds

Mindful of cl 4.6(3)(b) of HLEP, the written request seeks to demonstrate that there are sufficient environmental planning grounds to justify the contravention. Of relevance to my findings, the written request nominated two general grounds in respect of this topic. The first environmental planning ground that was argued had two strands: (1) that the proposal embodied a particularly small departure from the standard (7.1% or 71m2 in area), and (2) there would be no material impact arising from the departure. Here the written request references compliance with development standards generally (as referenced at [31]) and particularly pointed to the solar access credentials of the proposal (in regard to meeting standards for both neighbouring properties and the two proposed residences) and privacy implications ("through appropriate setbacks, the orientation of living areas to the street and rear boundaries, screened balconies and appropriately designed and offset windows" (Ex D p 15).
The second environmental planning ground, argued in the written request, went to the fact of the alignment between land identified as "K" in the Lot Size Map (and thus subject to the 1000m2 minimum lot size for dual occupancy standard under cl 4.1A of HLEP) and the land identified as falling within the FSPA (and thus subject to the provisions of cl 6.4 of HLEP). Among other things, it referred to recent studies, undertaken under the auspices of Council, which involved a critical appraisal of the currently identified FSPA, and the making of recommendations in regard to what were seen to be appropriate amendments. The written request references this work as the Georges River Foreshore Scenic Character Study, prepared by Ethos Urban for Georges River Council dated March 2021 (Ethos Urban study). According to the written request, the Ethos Urban study used two criteria to evaluate land for inclusion within a future FSPA, these were "visibility" (from Georges River) and "scenic character" (Ex D p 17). Mapping indicated that the subject site was not included within the recommended future FSPA under the Ethos Urban study. The written request concluded that: "The (Ethos Urban) study is a technical and evidence-based document that concluded that the Site does not embody any attributes that would warrant its retention within the FSPA. Notwithstanding its current retention within the FSPA the built form has been demonstrated to not have an adverse impact upon the FSPA with respect to the determinative factors of visibility and scenic character and for this reason it has considerable merit and should be supported on environmental planning grounds."
I can note here that the written request also worked through the provisions of cl 6.4 of HLEP (see [11]), arguing that the objectives of the clause had been met and the nominated considerations were well addressed, as argued below (Ex D p 10): "The proposal does not significantly affect the natural environment including, topography, rock formation, canopy vegetation or other significant vegetation, and given the site is not visible from the Georges River and foreshore, does not affect its visual environment or scenic quality. In fact, the site does not contain any specific or unique landscape or environmental qualities referred to in this clause, particularly rock formations, canopy or significant vegetation. This distinguishes the site from many other properties in the FSPA which are steeply sloping, have large amounts of canopy trees and contain rock outcrops and formations, all being features that would complicate development and may warrant a larger lot size. The proposal does not adversely affect any views to the River and the proposed landscape plan will provide for a positive improvement to the dominance of landscape over built form through the introduction of significant additional planting on the site which currently lacks any significant landscape qualities that contribute to landscape and scenic qualities."

[15]

Consideration

It seems to me helpful to consider the Council's submissions in coming to a conclusion on this topic. I might say firstly Council reminded me that the environmental planning grounds relied upon must be sufficient to justify contravening the development standard, with the focus on the aspect of the development that contravenes the development standard, rather than any unrelated benefits of the development as a whole (Initial Action at par 24).
Council was mindful of the written request's reference to a finding of myself in Eather v Randwick City Council [2021] NSWLEC 1075 (Eather), where I found at par 38 in relation to a contravention of a minimum lot size control for subdivision that "(a) particularly small departure from the actual numerical standard and lack of any material impacts" constituted sufficient environmental planning grounds to justify contravening the development standard. In Eather, the applicable minimum subdivision lot size was 400m2. The proposed subdivision would have provided for a lot size contravention of 1.75% for one lot and 6.5% for the second lot (Eather at par 9). Council argued that the proposal before me here did not involve a particularly small departure from the 1000m2 control. Council took me to Petrovic v Randwick City Council [2021] NSWLEC 1242 (Petrovic), where at par 51, Gray C made a finding that a departure from a minimum lot size for subdivision of 68m2 was not considered to be "particularly small", when the lot size control was 400m2. Council also argued that there were material impacts brought about by the proposal, which related to the contravention, here arguing a further point of difference from my findings in Eather.
In this case, I think the proposed contravention of some 7.1% is quite different from that in Petrovic which included a departure of some 17% from the applicable minimum lot size control (Petrovic at par 38). I have already given consideration to the merit's contentions above, and generally agree with the written request that through various design changes the proposal now does not bring material adverse effects. I do see the proposal as generally akin to Eather in that the proposal involves what is clearly a notably small departure from the applicable standard and involves no material adverse impacts. In the circumstances of this case, these are sufficient environmental planning grounds to justify contravening the development standard applying to that clause.
I would also refer to the written request's reference to the FSPA and the proposal's credentials in regard to cl 6.4 of HLEP, noting I am required to give consideration to the four listed matters at subcl 6.4(3). I accept the written request's position that the proposal, relevantly, provides a positive response to these matters requiring consideration. On this point, of particular note for me was the agreed position of the landscape and arboricultural experts on the qualities of the proposed landscape scheme. I mention this advice from Council's Mr Kenworthy in regard to the proposal's landscape planting regime (Ex 6 p 3): "The provisions of more trees in spaces capable of trees growing to maturity has been achieved. The landscape objectives set out (within cl 5 Landscaping of Part 6 of GRCP, (a) through to (g)) has been achieved where possible. The landscape outcomes are far better treatment than what currently exists."
While this is noted as a positive aspect of the proposal, I do not see the applicant's arguments in regard to the FSPA or cl 6.4 of HLEP as having any direct pertinence to the contravention of cl 4.1A which is concerned with achieving planned residential density in certain zones. An indirect relationship might of course be construed given the apparent correlation between areas marked "K" and the FSPA. To that extent it might be seen as an environmental planning ground of indirect interest but unnecessary for the written request's arguments in the circumstances of my evaluation.
As indicated at [42], I am of the opinion that the written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard.
Together, the above findings mean the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of HLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the height of buildings contravention.

[16]

Public interest

I now turn to the test at cl 4.6(4)(a)(ii) of HLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the minimum subdivision lot size standard and the objectives for development within the R2 zone.
The term "consistent" has been considered in many judgments of the Court. Here, I am happy to rely on the summary prepared by Tuor C in Moskovich v Waverley Council [2016] NSWLEC 1015 at par 53: "…(the term consistency) has been interpreted to mean "compatible" or "capable of existing together in harmony" (Dem Gillespies v Warringah Council (2002) 124 LGERA 147; Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190) or "not being antipathetic" (Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21)."
I agree with and rely on the written request's demonstration that the proposed development is consistent with the objective of cl 4.1A of HLEP.
The zone objectives are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area. • To ensure that a high level of residential amenity is achieved and maintained. • To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment. • To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity.
The proposed dual occupancy would provide for an aspect of the housing needs of the community within the current low density setting. The proposal is consistent with the first zone objective.
I believe that, on the evidence, the proposal does not compromise the amenity of the surrounding area, as existing now. I also find that these proposed residences exhibit quite high standards with good sized living areas and outdoor amenities. There is a capacity to manage potential privacy impacts in regard to the proposed swimming pools. The proposal would continue to provide for achievement of a high level of amenity for occupants. There is no suggestion that the proposal would have any adverse impact on the natural or cultural heritage of the area. Proposed landscaping is clearly a positive aspect of the proposal. It seems clear to me that the proposal would provide an improvement to the visual amenity experienced in the streetscape, especially having regard to proposed landscaping. The proposal is consistent with the third, fourth and fifth zone objectives.
The second and sixth zone objectives are not relevant.
On the basis of the above I find the development consistent with the R2 zone objectives.
Based on my conclusions above, the proposed development will be in the public interest because it is consistent with the objectives of the minimum lot size for dual occupancies standard and the objectives for development within the R2 Low Density Residential zone. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of HLEP are met in regard to contravention.

[19]

Other legislative matters

Under cl 6.7 of HLEP, development consent must not be granted unless the consent authority is satisfied that certain services that are essential for the development are available or that adequate arrangements have been made to make them available. In this instance, there is no contention in regard to essential services and I accept the advice of the applicant that all required essential services are or can be made available (Applicant's Outline of Closing Submissions dated 29 June 2022 (AOCS) par 15).
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 applies to the site and provides that a consent authority must not grant consent to any development on land unless it has considered whether the land is contaminated land or potentially contaminated land. Again, there is no contention raised by Council in regard to contamination. I accept the advice of the applicant that the site has been used for residential purposes for extended periods of time, and such uses and/or development are not typically associated with activities that would result in the contamination of the site (AOCS par 18). No further action is necessary in regard to the requirements of s 4.6.
Chapter 11 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021, concerned with the Georges River Catchment, applies to the site. I note here that as required I have considered the general and specific principles at ss 11.6 and 11.7, respectively, in my evaluation. Nothing arises of relevance to my conclusions.
Section 4.15(1) of the EPA Act requires a consent authority to take into consideration certain other matters, as relevant. I note that there were objecting submissions raised after the public notification of the proposal, and oral submissions from two local residents were also heard during the site inspection undertaken prior to the commencement of the hearing (summary notes were marked Ex 3). I have taken these submissions into account. Notably I think the evidence is clear that the proposal responds satisfactorily in regard to the privacy implications to the north, and that both landscaping and stormwater management concerns to the west have been responsibly addressed. I have regard to these objecting submissions in accordance with the requirement of s 4.15(1)(d)(iii) of the EPA Act.
I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Parties

Cases Cited (13)