Cumming v Cumberland Council

Background

1. In Cumming v Cumberland Council (No 2) [2021] NSWLEC 117, Moore J upheld an appeal on a question of law against the decision of a commissioner in Cumming v Cumberland Council [2021] NSWLEC 1330 and set aside the Commissioner's orders. His Honour made an exclusionary remitter order that these proceedings be determined by a commissioner other than the Commissioner who heard the matter, according to the law.
2. In summary, Moore J found that the Commissioner erred by not confining his consideration of "sufficient environmental planning grounds" within the meaning of cl 4.6(3)(b) of LEP 2010 to those matters relating exclusively to the breach of the height of buildings development standard under LEP 2010, but instead conflated other matters extraneous to the element of the proposal that breached the height of building's development standard, at [78].
3. On 18 March 2022, following the Court's orders made on 17 March 2022, the application was amended with the agreement of the consent authority to rely on documents listed in annexures of the applicant's notice of motion filed on 9 March 2022, subject to an order that the applicant pay the Council's costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the EPA Act.

The site and its context

1. The site is on the northern side of Mary Street, on the western corner of Frederick Street, Lidcombe. The site has an area of 386.2m2 and a frontage to Mary Street of 10.75m. The site contains a single storey dwelling.
2. Adjoining the site to the west is a four storey residential flat building at 28-30 Mary Street. Adjoining the site to the north is a two-storey dwelling at 1 Frederick Street. There is a duplex and dwellings on the opposite side of Frederick Street.
3. The site is a short walk to Lidcombe railway station.
4. The locality includes a church and grounds on the opposite side of Mary Street, residential apartment buildings and dwellings.

The amended proposal

1. The proposal is for a 7 storey boarding house development, containing 24 boarding rooms, a manager's room on the ground level, a communal room on the fourth level, storage for bicycles on the first floor and parking for 6 cars at ground level, including a car for the devoted shared use of the future residents, accessed from Frederick Street. The proposal includes communal open space in the front setback to Mary Street, and an area of open space for the manager in the south-western corner of the site, in the front setback to Mary Street.
2. The proposal has a front setback to Mary Street of 4.03m to 4.435m, a side setback to 28-30 Mary Street of 1.14m (for four levels) to 2.535m, and a rear setback of 4.615m.

Planning framework

1. The site is zoned R4 High Density Residential pursuant to the LEP 2010 and boarding houses are a nominate permissible use in the R4 zone. The objectives of the zone, to which regard must be had, 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.
2. The height of buildings development standard for the site is 20m (cl 4.3 and Height of Buildings Map HOB_007 of LEP 2010). The amended proposal has a maximum height of 23.09m. The objectives of the height of buildings development standard, at cl 4.3(1) of LEP 2010, are: (a) to establish a maximum height of buildings to enable appropriate development density to be achieved, and (b) to ensure that the height of buildings is compatible with the character of the locality.
3. The floor space ratio (FSR) development standard for the site is 2:1 (cl 4.4 and Floor Space Ratio Map Sheet FSR_001 of LEP 2010). The amended proposal has a FSR of 1.8:1.
4. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) Division 3 Boarding Houses applies to the site and the proposal at cll 26(d) and 27(1).
5. A consent authority must refuse consent to which Div 3 of SEPP ARH applies on the grounds of density or scale if the density or scale of the buildings when expressed as a FSR are not more than the existing FSR for any form of residential accommodation permitted on the land, at cl 29(1). The proposal is entitled to a FSR bonus of 0.5:1, at cl 29(c) of SEPP ARH.
6. A consent authority must not refuse consent to development to which Div 3 of SEPP ARH applies on the grounds listed under cl 29(2).
7. A consent authority must not consent to development to which Div 3 of SEPP ARH applies unless it is satisfied of each of the grounds listed under cl 30.
8. A consent authority must not consent to development to which Div 3 of SEPP ARH applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area, at cl 30A of SEPP ARH.
9. The Cumberland Local Environmental Plan 2021 (LEP 2021) commenced on 5 November 2021. State Environment Planning Policy (Housing) 2021 (SEPP Housing) commenced on 26 November 2021. Both instruments include savings provisions for development applications lodged but not yet determined. The development application was lodged on 26 June 2020 (Ex 1). Pursuant to s 4.15(1)(ii) of the EPA Act, any proposed instrument that is or has been the subject of public consultation under the EPA Act and that has been notified to the consent authority, is a matter for consideration in determining a development application.
10. LEP 2021 includes a savings provision at cl 1.8A for development applications made before the commencement of LEP 2021 but not determined. Under LEP 2021, the site is zoned R4, the proposal is permissible with consent and the objectives of the zone 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 ensure that non-residential land uses are located in a setting that minimises impacts on the amenity of a high density residential environment. • To encourage residential development that maintains the amenity of the surrounding area.
11. The height of buildings development standard for the site under LEP 2021 is 29m (cl 4.3 and Height of Buildings Map Sheet HOB_016 of LEP 2021).
12. The FSR development standard for the site under LEP 2021 is 2.2:1 (cl 4.4 and Floor Space Ratio Map Sheet FSR_016 of LEP 2021).
13. The Cumberland Development Control Plan 2021 (DCP 2021) commenced on the same day as LEP 2021. DCP 2021 includes a savings provision for applications lodged and not determined, at cl 1.1.4.
14. SEPP ARH is repealed by SEPP Housing at cl 10(1)(a). SEPP Housing includes a savings provision at cl 2 of Sch 7A that the policy does not apply to a development application made, but not yet determined, on or before the commencement date.
15. Part 2, Div 2 of SEPP Housing applies to boarding houses. Development for the purposes of boarding houses may be carried out with consent on land on which development for the purposes of boarding houses is permitted with consent under another environmental planning instrument, at cl 23(1).
16. Clause 24 of SEPP Housing includes non-discretionary development standards for boarding houses, that if complied with, prevent the consent authority from requiring more onerous standards for the matters. Clause 24(2)(d) of SEPP Housing is in the following terms: (d) for development on land in Zone R4 High Density Residential - the minimum landscaping requirements for residential flat buildings under a relevant planning instrument
17. The minimum parking requirement as a "do not refuse" standard for a boarding house under SEPP Housing for development on land within an accessible area is 0.2 spaces for each boarding room. For development consent to be granted under Pt 2, Div 2 of SEPP Housing, the boarding house is to be used for affordable housing (as defined) and is to be managed by a registered community housing provider, at cl 26.
18. Clause 25 of SEPP Housing includes standards for boarding houses, relevantly: (1) Development consent must not be granted under this Division unless the consent authority is satisfied that - (g) the minimum lot size for the boarding house is not less than - (iii) otherwise - the minimum lot size requirements for residential flat buildings under a relevant planning instrument (2) Development consent must not be granted under this Division unless the consent authority considers whether - (b) the front, side and rear setbacks for the boarding house are not less than - (ii) for development on land in Zone R4 High Density Residential - the minimum setback requirements for residential flat buildings under a relevant planning instrument, (c) if the boarding house has at least 3 storeys - the building will comply with the minimum building separation distances specified in the Apartment Design Guide
19. A "relevant planning instrument" is defined in the dictionary of SEPP Housing to include a development control plan, as follows: relevant planning instrument means an environmental planning instrument, other than this Policy, or a development control plan, if any, that applies to the land on which the development will be carried out.
20. DCP 2021, includes at Part B3 Residential Flat Buildings, control C2, that the minimum site area for a residential flat building is 1000m2, the minimum street frontage is 24m, the minimum front setback is no less than 6m or correspond with the existing prevalent building setback or with emerging setbacks in areas undergoing transition, 4m for secondary street setbacks and 3m for side setbacks.

Public submissions

1. Letters of objection to the proposal are included in the Respondent's bundle, Ex 7, and I have had regard to the concerns expressed by resident objectors in those letters.

Expert evidence

1. The Applicant relied on the expert evidence of Brad Delapierre (planning), Matthew McCarthy (traffic and parking) and Con Katsoulas (stormwater). The Council relied on the expert evidence of Rennie Rounds (planning), John Coady (traffic and parking) and Bala Sudarson (stormwater).
2. The parties relied on the joint reports admitted into evidence and oral expert evidence recorded in the transcript in Cumming v Cumberland Council [2021] NSWLEC 1330. The agreement of the stormwater experts resulted in the Council not pressing the stormwater contention. The planning experts prepared a supplementary joint report (Ex 13) and gave oral evidence.

Contravention of the height of buildings development standard

1. The proposal has a maximum height of 23.09m. The height of buildings development standard for the site is 20m.
2. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by Think Planners and dated 4 March 2022 (Ex V).
3. Clause 4.6(4) of LEP 2010 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ('Initial Action')). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a) of LEP 2010. As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) of LEP 2010, and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4) of LEP 2010, as follows: (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 Secretary has been obtained.
4. On appeal, the Court has the power under cl 4.6(2) of LEP 2010 to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2010 (Initial Action at [29]).

The applicant's written request to contravene the height of buildings development standard

1. The first opinion of satisfaction required by cl 4.6(4)(a)(i) of LEP 2010 is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2010 (see Initial Action at [15]), as follows: (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
2. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) of LEP 2010 and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 at [4]).
3. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ('Wehbe') and repeated in Initial Action [17]-[21]: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
4. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).
5. The applicant's written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable or unnecessary for the following reasons:

• The precinct currently contains 9 storey developments at the western end of Mary Street and this 7 storey development is consistent with the existing character of the precinct.
• Since lodgement, LEP 2021 has been made and increases building heights on the subject site to 29m. Given this the development is consistent in height with the likely future redevelopment of the precinct.
• The development does not exceed the permitted FSR for the development and facilitates the provision of an appropriate development density.
• The visual impact of the non-compliance is limited, noting that it will not be discernible from the street given the slender tower nature of the proposal.
• The shadow diagrams show the adjoining properties receive appropriate levels of solar access to living areas and private open space areas.
• The development provides an appropriate scale and intensity, noting the height of buildings at the western end of Mary Street and the likely future height control of 29m for this precinct.
• The variation will not have any adverse amenity impacts. In this regard it is noted: 1. The variation will barely be visually noticeable and will have no adverse impact on the physical bulk, height or scale of the development when viewed from the street; 2. The variation will not lead to a reduction in solar penetration on site, or to adjoining properties nor will it lead to sunlight loss or overshadowing; 3. The proposed variation will not lead to view loss or interrupt views to and from the site; 4. The proposed variation will not lead to a reduction in privacy afforded to existing residents or future residents of the proposal noting the site responsive design that takes into account the relationship to existing and approved developments in the locality.

1. The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality, (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).
2. The environmental planning grounds relied on by the applicant in the written request are as follows:

• Given the height control is based on a modelled building envelope that has regard to building envelopes, it is inevitable that 'something has to give' in order to give effect to the provisions in the SEPP ARH relating to bonus FSR. It is not that this is without merit limitation, it is of course, however, those are to be guided by the other provisions in (the SEPP) as well as looking at other general merit matters. The variation to the height control is consistent with the objective of the SEPP ARH as it affords the delivery of affordable and social housing on the site.
• The proposal is consistent with the Cumberland Interim Affordable Housing Policy, as this development provides for affordable housing and accommodation for key workers in a highly accessible location which is consistent with Transit Orientated Development and
• The proposal is not located within a low-density area and the proposal represents an appropriate built form on the site.

1. The Council submitted that none of the applicant's identified environmental planning grounds are sufficient to justify the contravention of the height of buildings development standard. The first justification asks to give effect to the bonus floor space available under SEPP ARH, yet the application does not rely on the bonus floor space, as the FSR for the proposal is less than the FSR development standard for the site. The second justification does not focus on the element of the building envelope that breaches the development standard. The third justification is irrelevant, because the site is not located in the R2 low density residential zone.
2. I accept the submissions of the Council regarding the applicant's identified environmental planning grounds in the written request. The first justification is a valid environmental planning ground, as development standards that determine a building envelope for a site cannot account for provisions under other environmental planning instruments (EPIs) that incentivise particular development with a floor area bonus or other mechanism that intensifies development. This pushes the ultimate contest for evaluating and determining a building envelope which includes a bonus volume available under another EPI for a specific use on a site to the development application stage, where a floor space bonus may be a sufficient ground for the exceedance of a maximum height development standard. As the applicant is not relying on the floor space bonus available under SEPP ARH, it raises a question as to whether it can be used as an environmental planning ground justifying the contravention of the height of buildings development standard, and if it can, whether it is sufficient. I accept the Council's criticism of the other two justifications for the reasons given.
3. The obvious environmental planning ground justifying the departure of the proposal from the maximum building height and the real reason, as submitted, the applicant seeks the additional storey is the uplift in the volume of building envelopes in the R4 zone available under the recently made LEP 2021, which is a mandatory consideration under s 4.15(1)(a)(ii) of the EPA Act. Although the written request does not specifically identify this justification as an environmental planning ground, the written request does identify it as a justification for the exceedance of the height of buildings development standard. The mandatory terms of cl 4.6(3) require that the written request demonstrates, "that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case" and that "there are sufficient environmental planning grounds to justify contravening the development standard". I am satisfied, pursuant to cl 4.6(4)(a)(i), that the written request has achieved both, and that the identification of the "likely future redevelopment of the precinct" under the new planning regime is an environmental planning ground (although not explicitly identified as such in the written request) that is sufficient to justify the departure from the old standard under the repealed (but saved) LEP 2010.

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

1. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).
2. I accept the applicant's reasons in the written request that the proposal is consistent with the R4 zone objectives. This is not a particularly high bar to clear for a boarding house in a high density zone. I do not, however, adopt the "not antipathetic to the zone objectives" test applied by the applicant in the written request as a test for consistency, citing Shaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21. I adopt the ordinary and natural meaning of "consistent" in relation to the requirement under cl 4.6(4)(a)(ii) of the Standard Instrument LEP (see Friends of Malua Bay Inc v Perkins (2014) 203 LGERA 14: [2014] NSWLEC 95 at [42]-[43] per Craig J, and Gillespies v Warringah Council (2002) 124 LGERA 147; [2002] NSWLEC 224 at 165 per Bignold J).
3. The first objective of the height of buildings development standard, "to establish a maximum height of buildings to enable appropriate development density to be achieved", is explanatory of the central purpose of the development standard to regulate the height of buildings (see Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 at [49]). It is not an end that a proposal must seek to achieve.
4. For the reasons set out below under my consideration of the the merit contentions, I am satisfied that the height of the proposal is consistent with the second objective of the height of buildings development standard, because the proposal is compatible with the future character of the locality given by the uplift in building volumes under LEP 2021.

Site dimensions and siting, bulk and scale

1. The Council's fundamental objection to this proposal is that the site is unsuitable for the development, because the volume of the building envelope is disproportionately large on this small site. The Council's contentions flow from this premise.
2. The R4 zoning and development standards for this site under LEP 2010 (FSR of 2:1 and height of 20m) envisage a six storey building envelope on this small site. The proposal, although it exceeds the height of buildings development standard, does not reach the limit of the FSR development standard for the site. The Council complains that the front, side and rear setbacks are insufficient. The combination of an exceedance of the maximum height, the unfulfilled FSR, and on the Council's case, the insufficient side setbacks, suggests that the development standards applying to the site under LEP 2010 were not sufficiently tested during the strategic planning exercise that informed LEP 2010. The volume of the building envelope given by the development standards under LEP 2010 is large on this small site.
3. The parties agreed that LEP 2021 effectively "sterilises" the site because the minimum site area for residential flat buildings, and therefore boarding houses under the provisions of SEPP Housing, is 1000m2. The strategic planning exercise informing LEP 2021 has dictated the only option for this site, and 1 Frederick Street, is to be amalgamated with 28-30 Mary Street at some future date in order to realise the development potential of these isolated sites at the end of the block.
4. I do not accept the Council's assertion that the proposal is akin to a residential flat building. A boarding house is a different development to a residential flat building, because it is a series of small rooms that can often be accommodated on a very constrained site as the spatial layout is more flexible, which is demonstrated by this proposal. The proposal effectively utilises the development potential of this isolated corner site and fulfils the objectives of the R4 zone to provide a housing choice within a high density residential environment, in close proximity to transport.
5. The Council conceded, after the applicant produced an analysis of possible future building envelopes for a residential apartment building consistent with the new planning regime for 28-30 Mary Street (Ex W), that the proposal does not impede the future development potential of the adjoining site. The Council submitted that the proposal does not result in amenity impacts that would impede the future development of the adjoining site. I am satisfied that the western elevation of the proposal provides an appropriate interface between the site and its western neighbour, even though the western setback is narrow, particularly because the horizontal circulation has been located on the western side of the building with highlight windows, and privacy louvres to the open corridor which has an increased side setback to the western boundary.

Character

1. I am satisfied that the building envelope proposed is appropriate for the use and for the site and is compatible with the future character of the locality given by the new planning regime. The site is located on the eastern side of the large area designated for buildings 29m high, and the block on the opposite side of Frederick Street is designated for buildings 20m high (Height of Buildings Map HOB_016 of LEP 2021). Although future residential flat buildings, and boarding houses, will be proportionally larger buildings on bigger sites, the proposal will fit in appropriately as a narrower, smaller building tempering the step between the 29m building heights on the western side of Frederick Street and the 20m building heights on the eastern side.
2. I accept the applicant's submissions that the building form is well modulated, and the façades are articulated.

Onsite parking

1. Mr Coady is of the view that the appropriate parking provision for this boarding house is between 11 and 13 car parking spaces, based on the Council's parking survey (Ex R). Mr McCarthy opined a parking rate of 0.25 for the first 8 boarding rooms, and 0.4 thereafter.
2. I accept the applicant's evidence and submissions that 6 parking spaces onsite, including a devoted share car for the boarding house, is the maximum that can be provided given the constraints of this site and will be sufficient, primarily because the site is located a short walk from Lidcombe railway station and close to shops and services, in an accessible area, in which there is at least a prospect of a lesser demand for car parking. The devoted share car goes some way to mitigating the parking shortfall. In addition, I have given some weight to the new provisions in SEPP Housing which require 5 parking spaces for a boarding house of 25 boarding rooms. The splay of the crossover has been adjusted so that only one on-street car parking space is lost as a result of the driveway.

Private open space in the front setback

1. I accept the Council's criticism of the south-facing front setback being used as the communal open space for the proposal, however, I do not consider this contention to be determinative. It is typical of a semi-private landscaped front garden to a residential development, which contributes to the setting of the building when viewed from the public domain. The proposal includes as the primary communal space, a north-facing room opening onto a balcony, with good amenity for the future residents.

Bicycle storage on Level 1

1. I accept the Applicant submission that the bicycle storage on Level 1 is not ideal, but it is available to the future residents of the proposal, it is sufficiently large and located near the lift for easy access. The storage is likely to be utilised by those with a bicycle.

Conclusion

1. I am satisfied that the applicant's written request to contravene the height of buildings development standard is well founded and that the proposal is acceptable. The proposal effectively utilises the development potential of this isolated, small corner site and provides a housing choice within a high density residential environment, in close proximity to transport.

Orders

1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 2020/374 for a seven storey boarding house containing 24 boarding rooms and a manager's room, at 32 Mary Street, Lidcombe, is determined by the grant of consent, subject to the conditions of consent at Annexure A. 3. The exhibits, other than Exhibits 1 and X, are returned.

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Susan O'Neill Commissioner of the Court Annexure A (338412, pdf)

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