Cumming v Cumberland Council

Cumming v Cumberland Council - [2021] NSWLEC 1330 - NSWLEC 2021 case summary — Zoe

[4]

Auburn Local Environmental Plan 2010

Boarding houses are permissible within the site's R4 High Density Residential zoned land under Auburn Local Environmental Plan 2010 (ALEP). The zone objectives are: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage high density residential development in close proximity to bus service nodes and railway stations.
Across Frederick Street to the east, and diagonally and south-east across Mary Street, the land is zoned R3 Medium Density Residential.
The site is distinctively identified in ALEP's Floor Space Ratio and Height of Building Maps. A maximum FSR of 2:1 and maximum building height of 20m is identified. As indicated above, the proposed maximum building height is 23.09m, contravening this standard. With an FSR of 1.81:1, the proposal meets ALEP's control of itself. That is, the proposal does not rely on FSR bonus provisions available to it under State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH).
The site is not within a heritage conservation area. It is within the vicinity of two heritage items identified as of local significance. The Applicant lodged a Statement of Heritage Impact. Council indicated it is satisfied that the development will not have unacceptable impacts upon nearby heritage items (Ex 1 p 8), and mindful of cl 5.10(4) of ALEP, I accept this advice.
Clause 6.5 of ALEP requires a consent authority to be satisfied in regard to the availability of various essential services. The Council is satisfied that essential services are available or can be made available, generally.
Exhibit 1 also draws attention to the existence of Draft Cumberland Local Environmental Plan 2020 (Draft CLEP) which has been subject to public notification and forwarded to the Department of Planning, Industry and Environment, towards its gazettal. Under Draft CLEP, as it currently stood during the course of hearing (as per the Draft CLEP maps provided at Ex 6), the site and the rest of the land west of Frederick Street, in the environs, would still be zoned R4 High Density Residential (it was indicated development for a boarding house would remain permissible in that zone). In addition, a maximum building height of 29m and a maximum FSR of 2.2:1 would apply. Land across Frederick Street to the east of the site (currently zoned R3 Medium Density with a maximum building height of 9m and a maximum FSR of 0.75:1), would according to Ex 6, take on the R4 High Density Residential zoning and have a maximum building height of 20m and a maximum FSR of 2:1. A point of disagreement is the imminence of gazettal, and certainty of final content, of Draft CLEP.

[8]

Whether cl 4.6 written request is required in regard to ALEP building height contravention

In a previous judgment (Boyce v Inner West Council [2019] NSWLEC 1521 (Boyce)), I found that cl 29(4) of SEPPARH provided power to consent to a boarding house development, notwithstanding a contravention of a local environmental plan height standard; and without recourse to cl 4.6 of that plan. My decision was based on a consideration of the authorities referred to me at the time. The essence of my finding was that, and both briefly and respectfully, I did not see in other authorities presented to me, sufficient justification to depart from the judicial findings of Moore J in 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13.
An authority referenced by the parties in the matter before me here, was Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106 (UPG). An issue given attention in UPG, to which I did not give sufficient attention in Boyce, is referenced as the "principle of harmonious operation" (UPG [13]): This principle of harmonious operation gives preference to a reasonable construction of a statutory instrument if the result is consistent with the operation of another instrument, where a different interpretation would create inconsistency.
The point here, as I understand it, is to prefer the construction that statutory instruments, under the same legislation, operate cooperatively, and to not be quick to read a circumstance of inconsistency. It was Council's submission that, mindful of UPG and other authorities, it would be incorrect for me to read cl 29(4) of SEPPARH as prevailing over the usual permissive function of cl 4.6, in this case in regard to ALEP. The Applicant's position was one of, as suggested with welcome alacrity in closing submissions, a "bet each way". That is, there was a recognition of what was called "the contemporary jurisdictional approach" as argued by Council (and a confidence that the jurisdictional barriers of cl 4.6 of ALEP had been addressed in the Applicant's case). But there was also a retention of the position that cl 29(4) of SEPPARH provided power of itself to approve a building height contravention (ie without recourse to cl 4.6 of ALEP).
While Boyce involved a setting where the question of inconsistency involved a local environmental plan and SEPPARH (as does the case here), and what might be understood as an established statutory hierarchy in regard to what happens in instances of inconsistency (cl 8); the principle of harmonious operation, as synthesised at UPG, is sufficient for me to agree with the submissions of the Council. That is that if, as in this case, there is a contravention of a local environmental plan height standard, jurisdiction is reliant on the use of the permissive powers at cl 4.6 of that plan.
As foreshadowed, here I adopt the position that the permissive powers at cl 4.6 ALEP needs to be relied upon. However, it will be seen that based on my analysis of the overall merits of the proposal, even a different interpretation of the powers of cl 29(4) of SEPPARH would not be of assistance to the Applicant in this instance.

[11]

Environmental planning grounds to justify contravening the development standard

I can reasonably synthesise the environmental planning grounds proffered by the WR, as follows: 1. The fact of Draft CLEP of itself, in particular, the maximum building height changes proposed; and with a mind to Draft CLEP's suggested imminence and certainty. 2. The proposed building height assists the proposal's capacity to deliver on wider (NSW) affordable, particularly affordable rental, housing ambitions, and the orderly development aims of the EPA Act. 3. The proposed building height assists the proposal align with or be compatible with the local strategic planning intentions and character. 4. The proposed building height, in company with the rest of the design, does not bring unreasonable adverse amenity impacts (eg overshadowing, visual character); which "proves up" that, notwithstanding its dimensions, the site is physically large enough and has a suitable width and depth to accommodate the proposed boarding house development.
Draft Cumberland Local Environmental Plan 2020 A particularly noteworthy aspect of the planning grounds cited in the WR related to Draft CLEP. Some further particulars were provided (WR p 25): (On) 15 July 2020, the Draft Cumberland Local Environmental Plan 2020 ('Draft CLEP 2020') was endorsed by the Respondent consent authority, which proposes an increased maximum building height standard for the Site (and the majority of the subject street block) to 29m (of which the proposal easily complies). At the date of this statement, the Draft CLEP 2020 is with the Department of Planning, Industry and Environment for finalization, with notification anticipated in April or May 2021;
There was also some examination of the status of Draft CLEP with the experts during the hearing. For example, there was a record of an email exchange between Mr Delapierre and a Council officer in November 2020, with an indication of submission of "all our map layers" and a suggestion of an "anticipation" of gazettal of Draft CLEP by early 2020 (Ex 3 Appendix E), something which has not come to pass at the time of writing. Ms Rounds indicated a kind of general acceptance that the Draft CLEP changes would come about, while expressing a lack of certainty in regard to whether there might be some changes at the State government level.
On the evidence before me, it seems to me that there is a good degree of imminence and certainty to the particular changes of most concern here (essentially relating to mapping), and that the understood forthcoming provisions would need to be given significant weight under s 4.15(1)(a)(ii) of the EPA Act (Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290; [2001] NSWLEC 279 at [30]-[34]). Draft CLEP's building height and FSR mapping (Ex 6) provides for increases relating to both the site and the surrounding land. This would comprise a building height change from 20m to 29m for the site and from 18m to 29m for the land to the immediate west and north; and an FSR change from 2:1 to 2.2:1 for the site and from 1.7:1 to 2.2:1 for the land to the immediate west and north. As indicated already, the upzoning of land to the east of Frederick Street and the changes to building height and FSR controls for this land is more substantial in relative terms (at [16]).

[13]

Alignment with local character and local strategic intent

For me, the WR includes two somewhat different and, in this instance not always complementary, arguments in regard to the issue of local character alignment or compatibility. This is that the proposal is in alignment with both the existing and desired future character, "either way" (p32).
A first argument links up to Draft CLEP, arguing its imminence and certainty. The WR calls up Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture), and a planning principle of the Court. In Project Venture, Roseth SC at [23] found: "It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing."
The point argued here is that the proposal is compatible with, and in alignment with, the desired future character as far as building height is concerned, with the imminence of Draft CLEP of particular note. The siting of the proposal, with good public transport accessibility, sits within this ground also.
A second argument refers to ALEP and finds the proposal, and relevant here the contravention, in alignment with the "local strategic intent". This is because the site and some other nearby corner sites already (WR p 32): "…benefit from additional height in comparison to the other surrounding sites that are similarly zoned R4 High Density Residential. For example, the Site, and the other 2 nearby corner sites at: a) Doodson Ave and Frederick Street; and b) Mary Street and Swete Street, all benefit from a 'Q2' marking on the height map, representing a maximum building height standard of 20m. However, the other surrounding sites that are similarly zoned R4 benefit from a 'P2' marking representing a maximum building height development standard of 18m. Similar the Project Venture, the difference in scale will produce a great (and intended) urban design (sic)"
Here a connection is also drawn with the taller ("9-storey") development at the western end of Mary Street within the B4 Mixed Use zone. I understood the submission was that there was a design intention here to "bookend" the setting with taller buildings at either end of Mary Street.
I can note here that I would agree that the proposal, with the contravention playing a role, would meet a number of the zone objectives as cited in the WR including those of: (1) providing for the housing needs of the community within a high-density environment, (2) contributing to a variety of housing types in a high-density environment, and (3) assisting in the maximisation of public transport patronage by providing residential accommodation in an accessible location (WR p 37). I also accept the WR's commentary on alignment with the Cumberland Interim Affordable Housing Policy as it "provides for affordable housing and accommodation for key workers in a highly accessible location" (WR p 36).

[14]

No adverse amenity impacts, and adequate site dimensions

The WR submits that the proposal (as amended), including the contravening height aspects, brings no unreasonable effects in regard to solar access, or privacy and that the visual impact of the contravening height aspects would not be unreasonable.
An explanation here was as follows (WR p 35): "The variation to maximum building height development standard enables development of the proposed boarding house on a lot that is physically large enough, and has suitable width and depth, to accommodate a boarding house development, which is demonstrated through almost strict compliance with the remaining planning controls."
I accept, as does Council, that there are no unreasonable neighbour physical amenity concerns with the contravention. I am also not concerned about visual impact, having regard to the intentions for future building heights in this location. However, as is well recognised, lack of adverse impacts does not have great weight in terms of providing sufficient planning grounds for a development standard contravention. The amenity concerns, also, only go so far in considering whether "the lot is physically large enough, and has suitable width and depth" to accommodate the proposal.
Ms Rounds believes the proposal involves "excessive" site coverage (of 79%). This concern is obviously related to setback, but Ms Rounds also raised deep soil and landscaping potential, and streetscape character implications (Ex 3 par 3.15): "(the proposal's site coverage) contributes to the inability of the development to provide any deep soil area with a minimum dimension of five (5) metres. The deep soil planting across the site is minimal and does not provide any visual relief from the bulk and scale of the building, the excessive building height or the considerable expanse of hardstand area across the northern portion of the site. The deep soil planting along the site's Mary Street frontage detracts from the existing established streetscape character, due largely in part to the excessive mature height (3 metres) of the screen planting proposed along the Mary Street frontage boundary. Where deep soil planting is provided, the landscaping does not serve to enhance the amenity of the development and complement the built form, but rather appears to have been designed around the residual areas not subject to the significant site coverage."

[19]

Finding

I do not find sufficient in the way of environmental planning response, either in the WR or the expert evidence more generally, to what Council is correct in suggesting to be a burdening of the adjoining land to the west, were the development to be approved as now proposed. The burden is in regard to future development potential mindful of desired future character. Of most particular interest to me is 28 Mary Street, immediately to the west of the site. Mr Delapierre argues, correctly, that amenity impacts are minimised through design response. But I was not able to see evidence of how "the design of the building does not reduce the potential of these sites to develop towards the bulk and scale envisioned by the existing and future planning controls" (at [56]).
It is reasonable to expect that the significant uplifting of development potential on nearby land will facilitate achievement of the desired future character of higher density development in this locality, especially given good public transport accessibility. In turn, there was nothing to suggest 28 Mary Street, subject to considerably lesser development potential under ALEP, would be other than a candidate for redevelopment under Draft CLEP at some time in the future. It is also reasonable to expect that a high proportion of RFB development would eventuate in the area subject to the development potential uplift, which would be subject to the provisions of the ADG. That is to say, it seems to me unreasonable, for example, to earmark 28 Mary Street for boarding house development in some way, in assessing the proposal's reasonableness.
All other things being equal, it would place an unreasonable impediment on the potential contribution of 28 Mary Street to the achievement of the desired future character of the local area, were a setting to be created where that parcel would be responsible for a distinctly higher proportion of the building separation encumbrance required by the ADG along the common boundary with the site. The fact that this might be done in order for a site, such as in the case here, to assist in achieving a limited increase to its potential contribution to the wider (NSW) affordable rental housing ambitions, is not sufficient grounds to justify the impediment on 28 Mary Street's potential to meet strategic intentions under Draft CLEP.
The building height would be a factor in what I am describing as a potential burdening of 28 Mary Street. Which brings me back to the contravention of ALEP and whether the WR demonstrates sufficient environmental planning grounds to justify it. I observe that a complying building (about one storey less than that now proposed) would lessen the burden on 28 Mary Street somewhat compared to the proposal. But it is also to note that the ADG building separation provisions do vary with height, with building separation distances up to four storeys (12m) less than those for five to eight storeys (25m) and beyond. When I consider all of the planning grounds proffered in WR, I am not satisfied that they are sufficient to justify the building height contravention of ALEP.
The particulars are provided above, but now I will briefly cross-reference the four, what I will call, summary points by which I synthesised the environmental planning grounds put by the WR (at [32]). On the first summary point, while the importance of the imminence and certainty of Draft CLEP is recognised, it does not of itself derogate from the jurisdictional requirement to satisfy development standards contained in ALEP. On the second, third and fourth summary points, I acknowledge the building height as proposed would provide for a marginal increase in affordable rental housing, and that there would be no unreasonable amenity impacts for neighbours now. However I do not see these aspects as sufficient to offset the downside outlined above. The circumstances of this case are that the site is not physically large or wide enough to accommodate a building of the proposed height and siting, without unreasonable effect on development potential for 12 Mary Street. The effect on the capacity for redevelopment of 12 Mary Street in accordance with local area character intentions, brings me to the view that, mindful of cl 30A of SEPPARH, the proposal is itself not compatible with the character of the local area.
I am not satisfied that the WR has adequately addressed the matters required to be demonstrated under cl 4.6(3)(b). That is, that there are sufficient environmental planning grounds to justify contravening the development standard. There is no jurisdiction to approve the development given the building height contravention.

[20]

General merits considerations

In this instance, some remarks need to be made in regard to broader merits considerations. First is to here, briefly, account for the Applicant's claim that cl 29(4) of SEPPARH provided power of itself to approve a building height contravention (ie without recourse to cl 4.6 of ALEP).
There is a capacity when considering broader merits to draw in other factors which may sit on the credit side for a proposal which might otherwise not have been introduced in a written request under cl 4.6(3) of ALEP. In this instance, I need to say that there are no obvious other planning benefits offered by the proposal of such weight as to counter what I have found above to be its negative implications. I do note that accessibility of the site is a strong point and goes some way to addressing on-site parking concerns. But, overall, I would confirm that on merits the proposal also fails. Rather than the fact of the top level of the building; the determinative weakness of the proposal is the proposal's general setback to 12 Mary Street, and the impediments the proposal would impose on reasonable development potential on that site in accordance with the desired character understood from Draft CLEP.
But a further particular point I wished to respond to was made in closing submissions from the Applicant, as it provides a platform for the cautioning of what might otherwise be taken from my primary findings. This was that the site's "exigencies" warrant particular attention in planning and development potential terms. There is the non-conforming use which currently exists on the site (with dwellings prohibited in the R4 zone under ALEP); but there is also the site dimensions and where the site sits in the street block as a potential "isolated site", a particularity which can bring its own frustrations for adjoining land subject to redevelopment ambitions. The Applicant's argument, as I understood it, was to turn these site exigencies to points of justification for a boarding house development on the site under SEPPARH, free of the building separation and other requirements of the ADG. I thought the submission was that apart from directly meeting the zone objectives relating to provision for the variety of housing needs of the community within a high density residential environment, an approval could bring about a resolution of a "complicated" question of what might be done about the site, should future development ambitions arise next door.
It is a fair point that the consideration before me here is not only concerned about optimising development potential of land other than the site. In seeking to optimise its own potential, the proposal has gone some considerable way to softening its negatives through what I saw as good quality architectural presentation, and at least to some extent, the qualities of the landscaping (in particular the "green wall"). There is also the particular privacy-related treatment of the western façade. I also note that the central part of the building has a maximum boundary offset of some 2.535m (Ex A) which is not far off "envisaged" ADG requirements for buildings up to four storeys; with, also, Cumberland Council's design review panel seeming to see some potential for a building considerably higher than this (Ex 5 folios 98-102).
I agree that, given the site exigencies, there is a need for practicality in the application of numerical constraints that might otherwise deny the reasonable achievement of existing and future character ambitions on the site. However, there is a point where this extends to the unreasonable. In this instance, it is clear that the proposal goes considerably too far, with the building height as proposed, in such proximity to the adjoining land to the west, mindful of that site's own potential to assist achievement of such ambitions.

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