Connolly v Waverley Council

Land and Environment Court (NSW)|2024-05-16

Background

COMMISSIONER: This is a Class 1 appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) brought by the Applicants, Aidan Connolly and Emma Lamb (Connolly & Lamb), against the refusal of Development Application DA-297/2022 (DA) at 24-26 Imperial Avenue, Bondi legally described as Lots 1-13 in SP 70219 (site).
Existing on the site are two buildings within the same strata scheme. One building is a three storey residential flat building with ten dwellings and basement carparking, storage and services (RFB) and the other is a heritage item building with two dwellings (heritage building). The DA seeks consent for Torrens title subdivision between the two buildings with associated building upgrades and easements and strata subdivision as described in detail below: 1. Sequential subdivision to achieve the Torrens title subdivision, summarised from the Addendum SEE prepared by Avenue Town Planning dated 4 April 2024 (Addendum SEE): 1. Further strata subdivision of the current two car spaces and storage lot entitlements in the RFB to service the heritage building dwellings; 2. Conversion of the heritage building lots (lots 12 and 13) into common property; 3. Torrens title subdivision of the total site into two lots. Lot 1 comprising the new common property area that formed the heritage building lots (formerly lots 12 and 13) and Lot 2 comprising the rest of the residential flat building lots; and 4. Transfer of the new Torrens title subdivision to the Applicants. 1. The heritage building dwellings will retain two car parking spaces and storage within the RFB. Services for the heritage building will be provided through various easements and rights of way including:

The site and context

The site has a frontage of 26.82m, northern boundary of 46.55m, southern boundary of 46.51m and rear boundary of 27.8m. The total site area is approximately 1270m2 (Ex 1).
The two buildings are mostly separated by a pedestrian path. The RFB wraps around and spoons the heritage building along the Castlefield Lane boundary. Pedestrian access is from Imperial Avenue for both buildings. Pedestrian access to the basement is through the RFB. Basement access for vehicles is from the rear off Castlefield Lane.
The site is zoned R3 Medium Density Residential under the WLEP.
Schedule 5 of the WLEP lists the whole site as a heritage item, number I37 and describes the item name as a federation style house. The site is located within the Imperial Avenue Heritage Conservation Area. The adjoining properties to the north, south and west contain heritage items.
Development in the area is a mix of three storey residential flat buildings and detached dwellings. The visual catchment is zoned R3 Medium Density Residential under the WLEP.

On site viewing

The proceedings commenced with a site viewing. The parties drew the Court's attention to the two buildings, the two dwellings in the heritage building, the separation areas between the buildings, the basement and the rear lane.

Public Submissions

The original DA lodged to Council was notified between 20 July 2022 to 8 August 2022. Two submissions from the same objector were received (Ex A, Tabs 12 and 13). The concerns raised in the objections are summarised below:

Impacts on lot entitlements to an owner in the same strata scheme.
The heritage item has been identified as an important part of the existing strata scheme when the dwelling was converted in the approval DALD885/00 in September 2000.
The unit was purchased based on the heritage building. The heritage building has not been maintained by the previous and current owners and has been tenanted.
The heritage building requires maintenance that should be controlled by strata scheme specialists, so that 24 Imperial Avenue is not damaged.
Objection to any change. The current scheme is complicated and the proposed scheme will be further complicated, confusing and impractical. The two buildings are located within 2m from each other and would continue to share common facilities.
The DA only benefits the Applicants.
The Torrens title subdivision does not meet the minimum lot size.
Queries about previous building alteration works (that do not form part of this DA).

Key Issues

Council raised that the following contentions in its Statement of Facts and Contentions (SOFAC) (Ex 1) would warrant refusal of the DA:

Contention 1 - Inappropriate form of subdivision.
Contention 2 - Unacceptable lot layout and form.
Contention 3 - Excessive form of development, excessive breach to Floor Space Ratio (FSR), absence of cl 4.6 written request.
Contention 4 - Residential amenity following building and fire upgrades necessitated by the proposed subdivision.
Contention 5 - Non compliances with the National Construction Code (NCC) for fire separation and access.
Contention 6 - Heritage impacts from subdivision and any works required to meet the NCC.
Contention 7 - Public interest from the contentions raised and submissions received.
Contentions 8-10 - Insufficient information regarding FSR calculations, servicing and utility infrastructure arrangements post subdivision for the heritage building site, proposed property and land titling arrangements.

At the hearing, Council helpfully provided detailed submissions confirming that the following contentions/particulars have been resolved, subject to conditions:

Parts of Contentions 1, 2 and 3.
Contentions 4 and 5 - The fire and building requirements have been confirmed and agreed by the experts.
Contention 6 - Based on the confirmed fire and building arrangements, the heritage experts agree that these works are acceptable.
Contentions 8-10 - All insufficient information has been provided and any issues have been dealt with or raised in other contentions.

Remaining Contentions 1, 2, 3 and 7 can be distilled to the following issues: 1. Does the proposed subdivision inherently involve a change of use? 2. Does the proposed subdivision breach the FSR development standard? 3. Is the proposal an inappropriate and disorderly form of subdivision?

The planning framework

As set out in the SOFAC the following planning legislation, environmental planning instruments and development control plans apply to the proposed development:

EPA Act
Strata Schemes Development Act 2015
Environmental Planning and Assessment Regulation 2021 (EPA Reg)
WLEP
Waverley Development Control Plan 2012(WDCP)

Expert Evidence

The Court granted leave for expert evidence in planning, heritage and Building Code of Australia 2022 (BCA)/fire matters in relation to nominated contentions prior to the commencement of the proceedings.
Expert evidence for the planning issues was submitted in a joint expert report (Planning JER) (Ex 3) by Benjamin Black for Connolly & Lamb and Stuart McDonald for Council. Oral evidence by the planning experts was provided during the hearing.
Expert evidence for the BCA and fire safety issues was submitted in a joint expert report (Fire/BCA JER) (Ex 4) by Michael Wynn-Jones for Connolly & Lamb and Arshdeep Mohi for Council.
Expert evidence for the heritage issues was submitted in a joint expert report (Heritage JER) (Ex 5) by James Phillips for Connolly & Lamb and Colin Brady for Council.

Does the proposed subdivision inherently involve a change of use?

Forming part of Contentions 1 and 3 and discussed by the planning experts in the Planning JER, it was contended that the proposed subdivision constituted a change of use for the heritage building. That change of use was initially said to be from a residential flat building to a dual occupancy. The following is the agreed position of the expert planners, extracted from the Planning JER (p 4): "1. The approved and actual land use of the two dwellings contained within the heritage building are strata titled residential apartments associated with the overall residential flat development at 24-26 Imperial Avenue. The two residential apartments are strata lots that form part of the existing strata plan and as such are not a dual occupancy. 2. The application as now amended proposes a change of land use from residential apartments and strata lots to a dual occupancy on the proposed Torrens Title lot."
Throughout the hearing, Mr Pickles SC confirmed that the DA did not seek consent for change of use. Referring back to the DA form (Ex 2, Tab 6), only Torrens title and strata subdivision is proposed. The Statement of Facts and Contentions in Reply (Ex E) at paragraph 5 states that the heritage building is not an apartment building and is a freestanding duplex. Mr Pickles SC submits that the existing buildings remain as a residential flat building and dual occupancy building.
Mr Pickles SC submits that the starting point is that subdivision is not a use of land. Relying on Preston CJ's decision of Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), Mr Pickles SC submits that: "…The proposition here is quite simply that subdivision as a matter of consent does not import any use and therefore it does not change the use…All that has been applied for is subdivision. Subdivision is a matter which requires development consent under the LEP, cl 2.6, but division per se does not entail a change of use. So the uses to which the buildings on the land at 24-26 Imperial Avenue are being put will continue to be the same uses as they are today, and no change to those uses is sought. That is the first cardinal principle…" (Extract from Tcpt 16/05/2024 p 70)
Mr Pickles SC submits that even if there was a notional effect of change of use, the dwellings will continue to be used as dwellings. There is no change of use.
In the alternative, if the Torrens title subdivision had the effect of converting the heritage building into a dual occupancy, the previous development would be defined as a dual occupancy in the WLEP. A 'dual occupancy (attached)' is defined in the RLEP as two dwellings that are attached to each other on one lot of land. The 'lot of land' reference is relevant.
Mr Pickles SC submits that the definitions for dual occupancies and semi-detached dwellings introduce the concept of a lot of land. Other defined terms such as dwelling and residential flat building focus on the building, not a lot of land. Only land can be subdivided. A lot of land is different to a lot. Consistent with s 9 of the Strata Schemes Development Act, land and buildings can be subdivided. However, when a strata plan of subdivision is created, they are lots in a strata plan, but they are not lots of land. Therefore, the strata subdivided dwellings in the heritage building are lots within a strata plan but not lots of land. Being on one lot of land, the heritage building is characterised as dual occupancy and there is still no change of use.
Mr Pickles SC addresses the Court of Appeal's decision of Issa v Burwood Council (2005) 137 LGERA 221; [2005] NSWCA 38 (Issa), in that the configuration of the two lots in the heritage building (one above the other) are not identifiable parcels of land. However the heritage building and its setting are still identifiable as an area of land.
Lastly, Mr Pickles SC submits that Preston CJ in DM & Longbow Pty Ltd v Willoughby City Council (2017) 228 LGERA 342; [2017] NSWLEC 173 drew a distinction between lots in a strata plan as opposed to lots of land at [21]. Mr Pickles SC submits that "…land in the context of the standard instrument must always mean a lot of land [and] must always refer to a lot under the Real Property Act [1900] being a lot of land registered…" (Extract from Tcpt 16/05/2024 p 74). It was submitted that the change from allotment to lot has changed since Issa.
Council's view on the proposed subdivision implicitly including a change of use in these circumstances was pressed. Ms Hammond agreed that putting aside any historical characterisation of the development, the existing heritage building on site could not be characterised as a residential flat building as it contained two dwellings.
In considering the other definitions, Ms Hammond submitted that the phrase 'one lot of land' did not exclude a strata lot being a 'lot of land'. The meaning of land relied on in the Real Property Act 1900 is broad and the identification of an allotment could be derived from the delineation of a lot or lots on a strata plan of subdivision.
Ms Hammond submitted that the heritage building could therefore be characterised as semi-detached dwellings, as each dwelling was on their own lot of land within the existing strata plan.
Council submitted that currently, the heritage building could not definitively be defined as a dual occupancy. The subdivision would therefore constitute a change of use because the Torrens title subdivision would form one lot of land. In any event, the change of use does not cause any issues pressed by Council.

Findings

I accept the submissions of Mr Pickles SC that there is no actual or implicit change of use for the reasons set out below.
Section 1.5(1) of the EPA Act defines development as: (1) For the purposes of this Act, development is any of the following - (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument.
As submitted by Mr Pickles SC, the subdivision of land is a form of development. As relevant to this DA, use of land, carrying out of work and the erection of a building are separate forms of development under s 1.5(1).
In Wehbe, Preston CJ considered a development application for demolition of various structures and Torrens title subdivision to create two lots. An existing dwelling house was to be retained. Consent was not sought for the construction and use of a new dwelling on the new lot.
I accept that the circumstances of Wehbe are relevant and I adopt the approach of the Chief Judge. Consistent with His Honour at [25] of Wehbe, this DA seeks consent for types of development defined in s 1.5 of the EPA Act. That type of development is s 1.5(1)(b) the subdivision of land. As a result of amendments to the DA, there are minor building works required for BCA and fire safety upgrades, being s 1.5(1)(d) the carrying out of work. None of the BCA and fire safety upgrades change the floor area of any of the existing buildings. Critically, s 1.5(1)(a) the use of land is not proposed in the DA. Section 1.5(1)(c) the erection of a building is not proposed. Section 4.19 facilitating that consent for the construction of a building also authorises use is therefore not engaged.
Development consent for subdivision is facilitated outside of the Land Use Table by cl 2.6 of the WLEP, consistent with the Standard Instrument template for LEPs. This also supports the proposition that subdivision itself does not inherently involve a change of use.
I acknowledge that some of the documentation within the DA refers to different characterisations of the existing and proposed development. The types of development sought have been identified at the hearing as Torrens title subdivision, strata subdivision and minor building works. No change of use is proposed, which is also consistent with most of the DA documentation including the DA form.
Preston CJ states at [28] of Wehbe: "28 As to the latter, subdivision itself does not involve any use of land: see Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 at 250; Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 34 LGRA 151 at 152 and Lyne v Moree Plains Shire Council (1999) 110 LGERA 120. Furthermore, consent for subdivision of land is consent for subdivision simpliciter and does not import any approval for subsequent use for any purpose. In Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 at 250, Sugerman J noted: "Approval of subdivision is approval of subdivision simpliciter and not approval of subdivision for any particular purpose, or with a view to the erection of some particular sort of building, either in the sense that it alone restricts the owners or in the sense that, by approving the particular subdivision, the Council must be taken to have approved of some particular sort of building being erected upon or some particular use being made of, the land"" (Emphasis added).
Relevantly in Wehbe, the Applicant sought to rely on the surrender of the existing use consent constituting a change of use, as those uses would then cease. At [32], His Honour found that a cessation of use does not mean there is a change of use or a commencement of another use. Whilst His Honour was also considering submissions relating to the change of use provisions for existing use rights, I accept Mr Pickles SC's submissions that the same principle applies here. The DA does not seek to surrender, cease or change the current lawful land use of the heritage building on site, which will continue post subdivision. Therefore, there is no change of use.
For completeness in relation to characterisation, I accept the agreed position made in submissions that the existing heritage building is not a residential flat building as it contains two dwellings. The WLEP definition defines a residential flat building as being three or more dwellings. I am unable to accept that it could be defined as semi-detached dwellings for the reasons submitted by Mr Pickles SC at [26] - [29]. The existing strata subdivision of the two dwellings within the heritage building, with one lot above the other, are lots in a strata plan. I do not consider that they are dwellings on their own 'lot of land' as required by the definition for semi-detached dwellings and are not two readily identifiable areas of land.
However as stated above, irrespective of how the existing development is defined, the DA specifically does not seek development consent for 'use'. The proposed Torrens title subdivision is a stand alone form of development defined by s 1.5 of the EPA Act and does not inherently involve a proposal for any other form of development including 'use'.

Does the proposed subdivision breach the FSR development standard?

Contentions 1 and 3 pressed that the Torrens title subdivision would result in a breach to the maximum allowable FSR of 0.75:1. Following subdivision, both sites would result in an FSR of 0.89:1 (RFB site) and 0.9:1 (heritage building site). The current FSR across the existing site is 0.9:1.
Accompanying the DA is a restriction proposed to be placed on the new heritage building title that would prevent further subdivision and prevent increased floor space. The restriction would be made to benefit Council (Ex A, Tab 9).
Mr Pickles SC relies on the decisions of Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 (Landcorp) at [56]-[57] and Investa Nominees (2) Pty Ltd v City of Sydney Council [2024] NSWLEC 1048 at [85]-[89] (Investa).
In Landcorp, Duggan J considered if cl 4.3 building height applied to a proposed development which did not alter or contribute to the building height. The existing building on site exceeded the maximum building height. Her Honour found that "The context of this clause is that it is located in that part of the LEP which is directed to the provision of development standards for new development. It manages change...". Her Honour found that the clause is therefore only operative where a proposed development alters the height.
In Investa, Peatman AC considered a stratum subdivision development. Consistent with Landcorp, the Commissioner found that cl 4.4 of the WLEP is prospective and regulates new development. A proposed covenant ensured that any further FSR was restricted.
In closing and with consideration of the relied on decisions, Council did not press the contention that the DA agitates cl 4.4 of WLEP.

Findings

I rely on the submissions advanced by Mr Pickles SC and consistent with Landcorp and Investa, I accept that the DA does not engage cl 4.4 FSR and by extension cl 4.6 of the WLEP. Clause 4.4 FSR is a development standard in the WLEP that operates in the same manner as considered by Duggan J in Landcorp. The development standard is prospective and seeks to regulate the FSR future buildings or new additional floor area. The proposed development for two forms of subdivision does not alter any floor space in either of the existing buildings.
Consistent with Investa, a restriction on title, enforced by draft Condition 16, will not permit additional gross floor area on either lot. Clause 4.4 is therefore not engaged.

Is the proposal an inappropriate and disorderly form of subdivision?

The following are key controls relevant to the issues arising from the Torrens title and strata subdivisions.
The site is located within the R3 Medium Density Residential Zone pursuant to the WLEP, with the following objectives that I have had regard to. In having regard to the objective to increase and preserve residential dwelling density, there is no change proposed to the number of dwellings on site. • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maximise public transport patronage and encourage walking and cycling. • To increase or preserve residential dwelling density. • To encourage the supply of housing, including affordable housing, that meets the needs of the population, particularly housing for older people and people with disability. • To provide development that is compatible with the desired future character and amenity of the surrounding neighbourhood. • To promote development that incorporates planning and design measures that reduce the urban heat island effect. • To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping.
Clause 4.1 minimum lot size requires a minimum lot size of 325m2. The proposed Torrens title subdivision now complies with the minimum. As the minimum lot size is met, Council in opening did not press the particulars relating to inconsistency with the objectives of cl 4.1 of the WLEP. The objectives are somewhat similar to the planning controls in Part B12 Subdivision of the WDCP. I note that cl 4.1(4) states that the minimum lot size does not apply to strata subdivision.
Clause 5.10 heritage conservation applies. I accept the agreement of the heritage experts in the Heritage JER that the subdivisions and minor fire and BCA works will not impact the heritage significance of the heritage item for the reasons set out in the Heritage JER. I also consider that the DA will not impact on the heritage significance of the Imperial Avenue Heritage Conservation Area and adjoining heritage items as the works are minimal and both the works and subdivisions will not be readily perceived from the street.
Part B12 Subdivision of the WDCP applies, which is set out below: "… Objectives (a) To maintain the established character of low density neighbourhoods occupied by dwelling houses, semi-detached dwellings, attached dual occupancies or a mixture of these housing types. (b) To ensure that subdivision or amalgamation respects the predominant development pattern of the locality. (c) To ensure that subdivision or amalgamation results in allotments that have adequate width and configuration to deliver suitable building design and to maintain the amenity of the neighbouring properties. (d) To prevent the fragmentation of land that would prevent the delivery of permitted uses on the lot. (e) To ensure that subdivision results in lot sizes that protect natural or cultural features including heritage items, protected ecological communities or species, and retain special features such as trees and views. (f) To avoid increasing the community's exposure to coastal hazards by minimising the number of residents living within areas that are at risk from coastal hazards. (g) To ensure that subdivision and amalgamation result in lots that can achieve compliance with all other relevant DCP controls. (h) To ensure that the creation of new lots does not result in a reduction of pedestrian or vehicular connectivity within the existing street network and provides a safe network. (i) To minimise any likely impact of subsequent development on the amenity of neighbouring properties. (j) To ensure that street addresses comply with the NSW Address Policy and User Manual 2021. Controls (a) Minimum lot sizes are contained in WLEP. (b) Where a proposed development involves the creation of a new lot, or number of new lots, capable of accommodating new buildings, the development application should be accompanied by at least a conceptual plan of the new building(s). (c) Applications must demonstrate that the following has been considered: (i) Site topography and other natural and physical features; (ii) Existing services and easements, or the need for new easements; (iii) Vehicle access; (iv) Any land dedications required (e.g. road widening); (v) Existing vegetation; (vi) Potential flood affectation and stormwater management requirements; (vii) Existing buildings or structures; and (viii) Heritage Items, Conservation Areas and adjoining Heritage Items. (d) Any resulting lots must have characteristics similar to the prevailing subdivision pattern of lots fronting the same street, in terms of area, dimensions and orientation. (e) All resulting lots must have at least one frontage to the street, and adequate vehicle and pedestrian access. … (g) Applications must demonstrate that any resulting allotments can facilitate development as per the zoning and controls on the land. This includes setbacks and open space provisions. (h) Subdivision or amalgamation must not result in the isolation of lots or reduce the development potential of adjoining land. (i) Applicants may be required to submit plans that clearly identify the future development potential of adjoining land to ensure its development potential will not be adversely impacted. (j) Subdivision or amalgamation must not compromise any significant features of the existing or adjoining sites including streetscape character, landscape features or trees. (k) Subdivision must not result in the creation of a new lot that contains significant site features that would render the land unable to be developed. For example the creation of allotments that are burdened by easements, flooding, or significant trees. … (n) Where a rear lane is provided to adjoining land, the laneway configuration must be continued through any new allotments and existing access arrangements to adjoining land maintained. …"
Council's contentions set out that the Torrens title subdivision is inconsistent with the predominant subdivision pattern, that development should provide the required facilities like car parking and services on their own site and that the multitude of easements and complicated strata scheme between the two Torrens title sites would not work in practice. On this basis, the DA is not in the public interest, is unsuitable for the site and is inconsistent with the objects of the EPA Act s 1.3(c) to "…promote the orderly and economic use and development land".
Mr McDonald, planning expert for Council, considered the development holistically and what would reasonably be required from a similar new development. New development would usually not be able to 'harvest' from other sites. The requirements of a dual occupancy including parking, storage, direct pedestrian and vehicular access, direct connections to services, suitable lot size and FSR would be key considerations and generally on the same development site.
Mr McDonald says that the previous consents to include the heritage building with the RFB were essential components of the development. The heritage building is totally reliant on and integrated into the RFB through car parking, storage and services. The proposed subdivision is complex and needs to demonstrate that the proposed outcome can be achieved. The current information is inadequate and details including all easements, restrictions and instruments should be provided prior to any grant of consent to provide clarity that the outcome can be achieved.
Mr McDonald's evidence is that the complexity of the proposed shared service arrangements, lack of detail and uncertain dispute resolution process between the proposed Torrens title lots is not orderly development. The extent of shared services is unclear, including waste facilities, and he had not encountered shared onsite detention before. The DA is now accompanied by a draft Building Management Statement, which does not address stormwater, sewer or gas connections. The draft Building Management Statement also refers to the heritage building as a single dwelling and lacks finality about whether it will be incorporated.
Mr McDonald says that the lot size should be large enough to accommodate the required facilities on the heritage building site. As the Torrens title subdivision cannot accommodate the reasonably expected outcomes, the retrospectively proposed lot size is inadequate.
Mr McDonald said that the proposed Torrens title subdivision is inconsistent with the predominant area, which contained rectilinear sites rather than L-shaped sites. In the area shown on Figure 1 of the Planning JER, of the 65 lots shown there was one battle axe and two L-shaped lots.
Mr McDonald maintained that the car parking provided on the same lot of land was critical when considering the previous subdivision consent. It was agreed that the WDCP contemplates scenarios where vehicular access/parking is not required, including for heritage buildings. Notwithstanding, Mr McDonald's evidence is that the scenario in the WDCP was not the proposal here and that the DA proposes an unusual arrangement for car parking on what would be an adjoining site. Responding to questions on the WDCP's controls for parking and the absence of minimum car parking controls in Part B7 7.2.1, Mr McDonald said that he took cues from the heading which is for 'onsite' parking and maintained that the starting point is car parking on the same site.
Mr McDonald's evidence is that the proposed subdivision, interrelationship between the buildings and excessive number of easements for facilities and services is not orderly development of land.
Ms Hammond says that the DA is not an orderly use and development of the land and is contrary to the objects of the EPA Act in s 1.3(c). The DA before the Court is unclear about how the subdivision will occur, whether it was a four step or two step process and how the titling will occur.
Council submits that the DA has not overcome the concerns about the practicality of the complex arrangements and the likely problems for the future owners. The arrangement would create conflict between the RFB and heritage building owners, who would remain as owners in the RFB strata through the car parking and storage entitlements. The DA does not contain adequate information that the proposed arrangement will practically work.
Further, as a general principle, a proposed subdivision and development for an RFB and dual occupancy would not propose parking and infrastructure on a neighbouring lot. The arrangements relying on adjoining land for parking and storage and the many easements for stormwater, sewerage, gas and other services is not orderly and economic development. The reliance on what would be the neighbouring site demonstrates that the site is not suitable for the proposed subdivision.
Ms Hammond submits that there has been no evidence provided that there have been any issues with the strata committee in releasing funds for maintenance work, which the Applicant says is the impetus of the DA. Council says that the maintenance works described throughout the DA can be achieved without the proposed subdivisions. Section 106 of the Strata Scheme Management Act requires owners corporations to maintain and repair property and there are other complaints mechanisms through the NSW Civil and Administrative Tribunal.
Ms Hammond submits that Investa can be distinguished, where the complexity of the easement arrangements was appropriate for a very large commercial development in the Sydney CBD. The facts here are different, being a different context and different relationship between residential uses.
Ms Hammond relies on Carstens v Pittwater Council (1999) LGERA 1; [1999] NSWLEC 249 (Carstens) and Marana Developments Pty Ltd v Botany Bay City Council [2010] NSWLEC 1237 (Marana) in relation to the scope of discretionary considerations under s 4.15 of the EPA Act to promote the objects of the EPA Act.
In Carstens at [22] - [26], Lloyd J said that: "22 These objects in my opinion can only be given full effect by not adopting a narrow construction of s 79C and narrow construction would exclude from consideration the objects of the Act … That is to say, I am inclined to the view that s 79C sets out the matters that must be taken into consideration but does exclude from consideration other matters not included in those listed, and which may be of relevance to the particular development application and which furthers the objects of the Act. … 26 Once it is determined a matter is a relevant consideration it is then a question for the decision maker to determine what weight should be given to it…"
Marana relevantly involved a strata subdivision of a residential flat building and Torrens title subdivision of part of the land. The Commissioners applied Carstens and dismissed the appeal on the basis that the proposal was not in the public interest and would frustrate redevelopment in an orderly and economic manner.
Ultimately, Ms Hammond's submits that compliance with the LEP and DCP, which is disputed, is not the end of the matters for consideration and that the proposed development is not orderly development of land (s 1.3(c) EPA Act). The proposal is unique and determinative weight should be given to the broader issues of s 4.15(1)(b)-(e) that demonstrate that the proposed development is not suitable for the site and is not in the public interest.
Mr Black, planning expert for Connolly & Lamb, stated that the intent of the DA was to separate the heritage building from the strata scheme in order to facilitate building repairs. It is Mr Black's understanding that repairs had been hindered by the present strata scheme, though confirmed in cross examination that he had not seen any correspondence on the issue.
Whilst the subdivision proposed is not of an ordinary form, Mr Black says that it is not so complex to be inappropriate or unworkable. Sufficient information has been provided regarding access and use of shared facilities, parking, storage, rights of access, covenants and easements that would be placed on both land titles. Further, a covenant is proposed to restrict the removal of the car parking and storage spaces from the heritage building, to be held by Council (Ex A, Tabs 9 and 10).
Mr Black relied on Part 7.2.4 of the WDCP, which does not require any car parking for a heritage building. In oral evidence, Mr Black agreed that for a new development, a different approach to car parking would likely be taken and contained within the same lot. However, Mr Black's evidence is that the subdivision that has occurred to date is not a standard scenario, the existing car parking/storage arrangement is abnormal and that the proposed subdivision seeks to resolve the problems with upgrading the heritage building. In response to questions about the ability to undertake the upgrade works now, Mr Black said that the process of external works usually required consent from the owners corporation.
In oral evidence about the draft Building Management Statement, Mr Black said that the costings for the shared facilities register needed to be completed. It was agreed that the shared facilities register did not include stormwater, onsite detention, sewer or gas. Mr Black's evidence is that there is sufficient detail in the DA about the access to services that will need to occur through titling arrangements.
Mr Black said that subdivision in the locality is a mix of sizes and shapes and lacks a strong pattern or rhythm. Mr Black's evidence that to the west of the local area were a number of L-shaped and battle axe lots. The proposed Torrens title subdivision is a site specific response to a unique situation of a residential flat building and separate heritage item on the same site. The proposed subdivision does not include any fencing or other structures and retains the existing pedestrian access from Imperial Avenue. The retention of car parking, access and services as currently existing will practically operate in an identical manner as the current subdivision. Accordingly, the Torrens title subdivision will not be visually recognisable. The amended DA will change the titling arrangements only.
Mr Pickles SC submits that the reasons for seeking a development application are irrelevant (Davies v Penrith City Council [2013] NSWLEC 1141).
Mr Pickles SC clarified in submissions that the DA is for Torrens title and strata subdivision, as outlined in the four steps set out in the amended SEE. The reference to the proposed stratum subdivision at step 3 is a typographical error that should refer to Torrens title. Of the four steps, development consent is only required for step 1, the strata subdivision and step 3, the Torrens title subdivision. The other steps are provided for information about the process.
In response to the complexity of the arrangements and lack of detail of each parties' responsibilities, it was submitted that where parties have mutual rights of way there are mutual responsibilities for maintenance as a matter of law. There is no uncertainty, and these arrangements are conventional.
Mr Pickles SC submits that the draft Building Management Statement may not be required but has been provided to show how the owners corporation and heritage building will operate in practice. The details include the shared facilities, representatives, meetings, notices, responsibilities, and costs. The exact details are a matter for the owners corporation and the owners of the heritage building, not Council. If it is required, it will be a matter for the Registrar General to approve. Further, the owners of utility lots, such as car parking and storage, do not have voting rights and the Council's stated conflicts between the two building owners will not arise.
Mr Pickles SC submits that the Council's described complexity of the titling arrangements does not mean that the development is an unorderly and uneconomic use of land. In Marana, the subdivision was not supported because the development potential of a large site would be fragmented. That problem does not exist here as there is no prejudice to the redevelopment of the land.

Subdivision

I accept that the DA introduces a complex arrangement between the two buildings through its array of subdivisions, numerous easements and titling arrangements. I agree that, as submitted by Council, in general a fresh DA seeking the proposed subdivisions and new buildings in a similar manner would ordinarily contain its respective buildings, car parking, storage and most services on its own land. However, I also acknowledge that a multitude of easements or facilities such as car parking serving a development on a different site is not novel.
The circumstances of this site are unique. The combined strata subdivision of both buildings, including the two strata subdivided dwellings within the heritage building, is uncommon. The circumstances have occurred through multiple consents and modification applications which I discuss further below.
It is understood that the current buildings and services all operate without complaint or issue (save for the asserted heritage maintenance issues). Ultimately, despite the complexity of the subdivisions and easements, there is no evidence that the DA is unworkable or will have any impacts. My reasons for finding that the merit issues raised by Council do not warrant refusal are set out below.
Part B12 of the WDCP is for Torrens title subdivision. Part B12 (d) seeks for lots to have "…characteristics similar to the prevailing subdivision of lots fronting the same street in terms of area, dimensions and orientation". This is not entirely dissimilar to objective (a) of cl 4.1.
Part B12 (d) focuses on lots facing the same street. The evidence considered the local area, as the contentions at the time responded to the minimum lot size variation of cl 4.1. I accept Mr Black's evidence that the lots within the local area do not contain a recognisable rhythm and are a variety of shapes and sizes. Focusing on lots facing Imperial Avenue, the lots are a mix of long narrow lots, wider and shorter lots, and angled/rhombus shaped lots. The proposed Torrens title subdivision would introduce a new L-shaped element. A few examples of L-shaped lots were identified in the wider area. However as Imperial Avenue has a variety of different lot sizes and shapes, I do not find that the new element would be inconsistent. For completeness, I have considered the evidence for a broader area and area shown in Figure 1 in the Planning JER and accept Mr Black's evidence that the existing lots do not establish a predominant pattern.
I find that the proposed subdivision does not breach Part B12 (d) as the street and local area do not present a prevailing subdivision pattern. As sought by Part B12 (d), the proposed subdivision contains characteristics similar to lots in the street as the proposed Torrens title subdivision meets the minimum lot size (cl 4.1), both lots will front Imperial Avenue, there is no change to orientation and the dimensions will not be alien to the street despite the L-shape of one of the new lots. There is some stepping of the new lot along the side and along the rear. I find that this is acceptable in the unique circumstances of this site as there is no predominant lot size, the lot configuration will not be perceived for the reasons set out by Mr Black at [79], and the lot shape appropriately relates to the existing heritage building and RFB.
All of the proposed easements, restrictions and service arrangements (such as parking) that facilitate the Torrens title subdivision so that the subdivision is not readily identifiable, form part of my essential reasons for granting consent.
Part B12 (c) requires consideration of car parking/vehicular access and the easements/services, which also arises as a matter of site suitability.
I accept Mr Black's evidence and Mr Pickles SC's submissions that the WDCP dispenses with parking requirements for this site as per Parts 7.2.2 and 7.2.4 of the WDCP. Firstly, there is no change of use proposed that might generate a parking requirement. Secondly, the parking rates operate as maximums not minimums. Thirdly, the controls contemplate exemptions for heritage buildings which I accept are appropriate for this site as the proposed arrangement does not have any impacts on the heritage values of the building. Also having regard to the history of consents and different car parking requirements, I accept that no car parking is required and the arrangement for parking through the subdivisions, easements and right of way is a complexity for the respective owners to grapple with in due course.
Part B12 (c) requires consideration of existing and new services and easements. The difficulty in accepting Council's evidence is that all essential infrastructure is currently provided to both buildings. The issue is the complexity and extent of easements and restrictions, which I appreciate has not been helped by inconsistent information through the life of the appeal.
Whilst I accept the titling arrangements through the easements and strata lots is complex, there is no evidence to contradict that what works now, will not work as a result of the subdivisions. I accept the submissions of Mr Pickles SC, in that the exact arrangements of the easements and services or the shared facilities costings and communication methods between parties are not required at this stage in determining whether to grant consent. All infrastructure is currently provided and operational. The proposed subdivision plans, draft s 88B Instrument and Draft Building Management Statement identify the services/easements that are required. The draft conditions of consent require the identified covenants, easements and restrictions to be registered prior to the issue of a subdivision certificate. A condition of consent has been included for waste management. The consent of the owners corporation has been provided for the lodgement of the DA including shared provision of the existing essential infrastructure and services. All the required infrastructure is proposed, without identifiable issues.
I am unable to accept that the further detail Council says warrants refusal of the DA is required at this stage of granting development consent, given the unique circumstances of the subdivision of the existing development. I therefore accept that Part B12 (c) has been considered, all existing and new services and easements have been identified and the control is met.
There were no other controls in Part B12 Subdivision identified in the contentions or oral evidence as not being met. I accept on the evidence that the DA meets the provisions of Part B12 and that the proposed lot size and shape is acceptable.

Site suitability

In relation to site suitability and the public interest, I accept Ms Hammond's submissions that separate from consideration of the WLEP and WDCP, I should consider and give weight to s 4.15(1)(b), (c), (d) and (e). I deal with these under 'site suitability' and 'public interest and orderly development of land'.
The suitability of the site primarily seems to arise from a combination of lot shape, the ability to provide car parking and storage on site as well as the provision of the easements. Where site suitability related to FSR, as previously discussed, cl 4.4 of the WLEP does not apply. I have also already dealt with the lot shape.
For the reasons set out above at [92]-[93], I accept that in the circumstances of this DA, car parking for the heritage building is discretionary. I accept Mr McDonald's evidence that Part 7.2 is for on-site parking, consistent with the heading and objective 7.2(a). The provision of car parking on the future adjoining site through the proposed strata subdivision and titling arrangements is outside of the requirements of Part 7.2. But as I've found that car parking is not required in this instance, the proposed additional parking off site does not demonstrate that the site is unsuitable. With respect to the off-site shared storage, I similarly consider this as a bonus for the heritage building and there was no evidence specifically on any requirement or broader need for this area as storage.
The proposed shared easements and services, whilst unique in their execution here, do not demonstrate that the site is unsuitable. There is no evidence that the arrangements currently do not work or will not work as proposed. The primary basis is the complexity of the proposed arrangement. Absent of evidence demonstrating the impacts from the complexity, the DA provides sufficient information to demonstrate that shared services will work for the reasons I give at [95].
Finally, there was inadequate evidence to support the Council's position that previous consents were granted on the basis of the RFB and heritage building integration. A number of consents were provided in Ex 2, Tabs 13-17 and Ex G:

DA/B/88/8/132/26 related to the heritage building and granted consent for alterations and additions to the existing residential flat building. The assessment report sets out that the existing residential flat building contained three dwellings with two existing car spaces. It stated that at the time of the original approval, there would not have been any car parking requirements.
DA-885/00 described the development as: "…demolish No. 24 Imperial and erect a residential flat building incorporation (sic) No. 26 Imperial Avenue comprising 11 units with basement parking for 16 cars…". Condition 11 required the garbage room to be relocated into the basement carpark. Other conditions required a redesign to respect the heritage features of the heritage building.
A modification application to DA-885/2000 was granted in 2002 to relocate the storerooms, garbage and utilities to the basement garage area, reduce the amount of demolition of the heritage building and incorporate the two dwellings within one strata lot. Conditions of consent included car parking allocations and a requirement for a separate strata subdivision for the dwellings within the heritage building (approved as one lot only).
DA-11/2003 granted consent for subdivision of a residential flat building to create 11 strata lots. Lot 11 was for the heritage building. DA-878/2004 was approved for the strata subdivision of lot 11 into two lots within the heritage building (now known as lots 12 and 13). The subdivision certificate for lots 12 and 13 was issued on 3 November 2005.

In considering the above consents, the consents and practical operation show an integration and a relationship between the two buildings. Not that the development was granted on the basis of their integration. In any event, the buildings will still be integrated and will somewhat continue many functions in the same manner as they currently do.
Accordingly, I am unable to accept that the previous consents, shared easements/services, complexity of the arrangements and off site carparking and storage render the site as unsuitable or warrant refusal of the DA pursuant to s 4.15(1)(c) of the EPA Act.

Public interest and orderly development of land

Moving to consideration of the public interest (s 4.15(1)(e) of the EPA Act) and orderly development of land (s 1.3(c) EPA Act), I accept that the proposed subdivision does not warrant refusal on this basis for the reasons below.
Firstly, although raised in the first instance by Connolly & Lamb, I accept that the impetus of a DA is not relevant (see: Davies v Penrith City Council [2013] NSWLEC 1141 at [118]-[121]).
Council relies on Marana which proposed a similar form of Torrens title and strata subdivision. The Commissioners' found at [64] that the subdivisions would be antipathetic to the objects of the EPA Act, to promote the orderly and economic use and development of the land (at that time, s 5(a)(ii)) and that the broader public interest would not be served.
I accept that the facts here can be distinguished from Marana. The key issue raised in Marana was the limited redevelopment potential on a site of 5,636m2 for high density residential, in an area where Council's strategic planning sought to deliver increased density. The proposed strata and Torrens title subdivisions were found to result in an underdevelopment of a large site in an area identified for housing growth.
The facts are different here. The site already contains two strata subdivided buildings which physically spread across the majority of the site. Both the heritage significance and existing strata subdivision are barriers to redevelopment, particularly where the current development exceeds the maximum FSR. I accept Mr Pickles SC's submissions that the reasons for refusing the proposed subdivisions in Marana are different to the circumstances of this DA.
I have previously dealt with the proposed services/easements arrangements at length. As there are no physical works proposed that would change any of those existing arrangements that currently operate without any known issues, I accept Connolly & Lamb's submissions that access to these services will remain. The broader public interest is not impacted by these private arrangements.
I accept the submissions that the community objections received primarily relate to private interests, not public interests. I deal with these at [113]. It could be said that the heritage concerns raised are a matter of public interest, however I accept the evidence that there are no heritage impacts from the proposed development at [56].
I find that there are no reasons that warrant refusal of the DA on the basis of the public interest s 4.15(1)(c) of the EPA Act. The resultant arrangement is complex, but without demonstrable impacts, particularly to the public. Any risks arising from the complex arrangement is a matter for the respective owners. There is very little redevelopment potential of the existing site under the existing planning controls and site constraints. I accept Connolly & Lamb's submissions and find that the proposed subdivision is not an inappropriate or disorderly development of land. There are no issues raised that warrant refusal of the DA.

Community submissions

The two submissions received were from a resident within the RFB. I will address the concerns raised below, and find that the concerns raised do not warrant refusal of the DA.
The proposed Torrens title subdivision has been amended and now meets the minimum lot size requirements of cl 4.1 of the WLEP.
I have dealt with the heritage concerns in relation to impacts and previous consents. The concerns about the current neglect of the heritage item, which still forms part of the current strata scheme is a private matter. Any potential damage between the buildings that might occur from the maintenance works is subject to subdivision works conditions in the draft conditions of consent.
I have dealt with the proposed easement and service arrangements further above in detail. There is no evidence that the proposal will not work and the complexity of the arrangement is not a reason for refusal on its own.
In considering a DA, I am generally required to confine these considerations to the provisions within s 4.15 of the EPA Act. The concerns raised in relation to impacts on lot entitlements and reasons for purchase are private interests that I do not consider to be relevant matters for consideration under s 4.15 of the EPA Act. Similarly, the tenanting arrangements of the heritage building, previous building alterations and any benefits to the Applicant are not relevant matters for consideration.

Preconditions to grant of consent

Section 62 of the EPA Reg requires that a consent authority must consider if a building has structural capacity and appropriate fire protection for change of use development applications. Development consent must not be granted unless the consent authority, or the Court on appeal, is satisfied that the building complies or will comply with the applicable Category 1 fire safety provisions.
I have previously found that the DA does not involve a change of use. For the abundance of caution, I have considered the agreement of the fire and building experts in the Fire/BCA JER (Ex 4) and Fire Engineering Letter (Ex H) that conclude that the buildings will comply with the applicable fire safety provisions. Relevant conditions have been included in the draft conditions of consent (1, 2, 4, 5 and 12).
Following the Court's directions at the hearing, an agreed set of draft conditions of consent were filed to the Court on 23 May 2024.

Conclusion

The DA for subdivision and buildings works is found to not implicitly involve development for a change of use or engage the FSR development standard.
The existing development and arrangements on site are unique. The contested Torrens title subdivision size and shape is appropriate with consideration of the mixed subdivision lot shapes of the street and area. The proposed shared facilities, easements and services all currently exist and will continue to operate as they currently do. There is no evidence that these arrangements do not function appropriately. The proposed changes to the titling arrangements as a result of the Torrens title subdivision will not change its functionality and are consistent with the provisions of the WLEP and WDCP.
In considering the evidence against the likely impacts of the development, the broader public interest, site suitability and orderly development, the proposed development is consistent with these matters for consideration.
I therefore conclude that the DA should be granted development consent.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development application No. DA-297/2022 for strata subdivision and Torrens title subdivision into two lots at 24-26 Imperial Avenue Bondi is determined by the grant of consent subject to the conditions of consent in Annexure A. 3. The exhibits are returned except for 1, A and E.

Annexure A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2024

(2017) 228 LGERA 342

(2005) 137 LGERA 221

(2007) 156 LGERA 446

(1999) 110 LGERA 120

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