Developer Entity Pty Ltd v Strathfield Municipal Council

Land and Environment Court (NSW)|2023-02-14

The applicant's position on the breach of the development standard

Developer Entity's position is that, notwithstanding the breach of the development standard, the proposed development is of appropriate density in circumstances where it largely complies with the built form controls in the SDCP, is supported by a request pursuant to cl 4.6 of the SLEP, has less impacts than what could have occurred if it was developed as dual occupancy, and achieves what is intended for the R3 Medium Density Residential zone.
Developer Entity relies on the written request dated December 2022 concerning the breach of the development standard for the minimum lot size for multi dwelling housing. In addressing that compliance is unreasonable or unnecessary, the request relies on the fact that the Site is the last remaining allotment that has not been developed in the R3 zone, and is therefore unable to be amalgamated to develop the lot in accordance with the minimum lot size requirements for multi dwelling housing. The request states that the "site is thereby isolated and represents the maximum site area that can [be] achieved". The request relies on this same ground as the environmental planning ground that justifies the contravention of the standard.
In developing this point further, the request points out that at the time the development consent was granted for the surrounding multi dwelling housing, the minimum lot size for multi dwelling housing was 500m2. The request states that the change to the SLEP to increase the minimum lot size and the change to the SDCP to increase the minimum frontage were introduced "presumably with the knowledge that the subject site would be deficient against both requirements".
In support of this being an environmental planning ground and a basis upon which compliance is unreasonable and unnecessary, the request relies on the decision of the Court in Kasif v Georges River Council [2020] NSWLEC 1068, in which the Court found that compliance with the minimum lot size would result in an isolated site precluding its redevelopment in accordance with the objective of the zone and of the standard. The Court relies on the absence of adverse impacts to establish that the "lot size does not preclude the form of development envisaged by the zoning". In reliance on this decision, the written request sets out a list of various impacts that are avoided by the proposed development. With respect to the pattern of subdivision, the request states that "the proposed outcome of a row of 4 townhouses on a lot frontage similar to those which adjoin the site to the north and west is considered to reflect and reinforce the predominant pattern of subdivision and development typology on land zoned R3".

The Council's position on the breach of the development standard

The Council's position is instead that the substantial shortfall in the lot size required by cl 4.1A of the SLEP and in the site width required by SDCP is indicative that the Site is not suitable for the density of the proposed development.
The Council relies on the detailed evidence of Ms McCabe concerning how cl 4.1A of the SLEP operates to control planned residential density. In essence, her evidence is that cl 4.1A controls residential density by managing land use intensity, in that it controls the number of dwellings on an individual lot through land use type and a minimum lot size. She points out that a dual occupancy is a form of medium density housing pursuant to the SLEP, since it is a prohibited form of development in the R2 zone. Her evidence is (Ex 4 p 6): "14. Lot size particularly in the absence of a FSR control can operate as a density control - as well as a built form control. 15. A street of 200m2 minimum lot sizes will look very different from that with a 750m2 minimum lot size. The intensity and density of development will be different. A lot size requirement tied to a particular land use will also act as a planned residential density which can refer to the intensity of dwellings in a particular area. The more "dwellings" on a lot, the more dense an area will be considered. Planned residential density in the context of the Strathfield LEP 2012 is about the number of "dwellings" on an individual lot. 16. In a R3 Medium Density Residential zone to allow for a multiple "dwellings" on an individual lot - a minimum lot size standard is identified for particular land uses. A development (dual occupancy) containing two (2) dwellings requires 560m2. Based on this, four (4) dwellings would require 1120m2. 17. If the "density" applying to a dual occupancy is applied to this lot, it could accommodate approximately 2.5 dwellings. These are crude numbers and do not necessarily reflect an actual built form outcome. I also note that the standard is not expressed in this way. 18. The differentiation between the R2 Low Density Residential zone and R3 Medium Density Residential zone is in density terms related to how many "dwellings" can be accommodated on one (1) lot. In the R2 Low Density Residential zone it is essentially one (1) given the nature of the permissible uses - noting that a secondary dwelling limited in size would also be permitted. In R3 Medium Density Residential zone it is two (2) or more. This is the planned density - which is then separately controlled through lot size. The density standard is tied to use. … 20. The R3 Medium Density Residential zone in Strathfield provides for a range of housing over a variety of lots. More intense development - multi dwelling houses and residential flat buildings require larger lots to accommodate more intense development. 21. Multi-dwelling housing or RFB cannot be built on less than 1000m2 - the planned residential density requires amalgamation for more intense development."
In considering whether the current proposal achieves the planned residential density, Ms McCabe opines that the proposed development is an overdevelopment and does not achieve the planned residential density. She points out that it is not only inconsistent with the planned density set by cl 4.1A, but it also seeks to achieve too much built form density, which is "indicative of the limitation of the capacity of the site to accommodate the scale of development as proposed". The indicia of there being too much on the Site is that there is a technical exceedance of the height development standard, there is a non-compliance with the 4m side setback, the basement is built to the boundary, the built form extends 32m down the length of the block at a zone interface, and "all activity areas [are] orientated to the side boundary and limited break up of building mass".
For those reasons, Ms McCabe opines that the proposed development is not in the public interest because it does not satisfy the objectives of the standard or the zone, and compliance is not established by the request to be unreasonable or unnecessary or justified by an environmental planning ground.

The matters in cl 4.6(4)(a) are not satisfied so as to allow development consent to be granted

I have not reached the state of satisfaction required by cl 4.6(4)(a), as I am not satisfied that the proposed development will be consistent with the objective of the standard. I reach this conclusion for the following reasons.
As set out above, the objective of the standard in cl 4.1A is to "achieve planned residential density in certain zones". This is explanatory of the purpose of the minimum lot size development standards in cl 4.1A(2). The word "density" in town planning relates to both land use intensity (the size and number of units of use within a given area), and built form scale (the size, bulk and massing) (see Wechsler v Parramatta City Council [2017] NSWLEC 1663 at [31]; Goreski v Hurstville City Council (No. 2) [2012] NSWLEC 1026 at [23]; PRJM Pty Ltd v Hawkesbury City Council [2016] NSWLEC 1217 at [43]). The "planned residential density" is descriptive of the residential density that results from compliance with the standard.
I accept Ms McCabe's evidence concerning the manner in which the standard in cl 4.1A of the SLEP operates to "achieve planned residential density". Clause 4.1A controls the residential density by managing land use intensity, in that it controls the number of dwellings on an individual lot in a particular zone through land use type and a minimum lot size. This would then have the effect of managing built form scale when the applicable built form controls for that particular land use are applied. By so doing, the application of the standard in cl 4.1A achieves "planned residential density" in both land use intensity and built form density. As such, I accept Ms McCabe's evidence that, in the absence of compliance with the minimum lot size development standard which controls land use intensity, the indicia as to whether it is an appropriate land use intensity for the Site can be understood by considering its built form density.
Obviously one way in which a proposed development can be consistent with the objective to "achieve planned residential density" is to comply with the minimum lot size in cl 4.1A(2) for the given land use in the particular zone. In the absence of compliance with the standard, cl 4.6 of the SLEP allows flexibility and the proposed development needs to proffer some other way in which it is consistent with the objective. I do not accept that the proposed development does so.
Firstly, one way in which the proposed development seeks to achieve consistency with the objective is by providing 4 dwellings, which the written request says provides housing that is consistent with the medium density zone and with the number of dwellings in the townhouse development on the site to the north. Whilst the number of dwellings on the Site is consistent with the number of dwellings in an equivalent area of the site to the north, the built form density of the dwellings on the Site is not equivalent to that to the north. The townhouse development (31 MacKenzie Street) is two storeys in height and unobtrusive when viewed from the streetscape, with a top relative level of RL 19.21. In contrast, the proposed development is three storeys in height and presents as an unarticulated three-storey form to the street, with a top RL of 22.59, which is 3.38m difference to the townhouse development to the north. With the largely compliant side setbacks that are required by the SDCP for a site with a larger frontage width, this pushes the streetscape presentation to a tall and narrow unrelieved three-storey form. I accept the evidence of Ms McCabe that, when compared to the townhouse development to the north, the proposed development will be a discordant element in the streetscape as a result of its height and massing. Therefore, I find that the proposed development is not consistent with the density of the townhouse development to the north, and I therefore cannot be satisfied that it is consistent with the objective to "achieve planned residential density" on that basis.
Secondly, Mr Betros considers that the provision of 4 dwellings achieves the planned residential density for the R3 zone, which is for multi dwelling housing, and any less than this would not be consistent with residential densities for medium density housing. Consistent with this position, the request states "variation from the minimum allotment standard will facilitate achievement of the objective to a greater degree than if the development were restricted to either a dwelling house or dual occupancy i.e. low density housing forms". I find that this evidence is inconsistent with the operation of cl 4.1A, which does not anticipate 4 dwellings on a site that is less than 1000m2 in the R3 medium density residential zone. It is also inconsistent with the R3 zoning, which is the only residential zone in which dual occupancies are permissible. Therefore, there is no basis on which to accept the bare assertion that 4 dwellings achieves the objective of cl 4.1A in a greater manner than other forms of development or less dwellings.
Thirdly, Mr Betros opines that the amenity of the dwellings and the absence of impacts on adjoining development confirms that the proposed development represents an orderly use of the Site. However, I do not consider that lack of specific amenity impacts and the high degree of amenity enjoyed by the dwellings is sufficient to be consistent with the objective to "achieve planned residential density". Whilst it is true that unacceptable amenity impacts can be caused by excessive density, the objective of the residential density sought to be achieved by cl 4.1A does not raise any consideration or issue of amenity.
Fourthly, another way in which the proposed development could be considered consistent with the objective to achieve planned residential density is by compliance with the building envelope controls in the SDCP. However, the Site does not comply with the minimum lot width control in the SDCP, and, as a result, in trying to provide side setbacks that are required by the SDCP for sites that are expected to have a larger frontage width, the streetscape presentation has been pushed to a tall and narrow unrelieved three-storey form. This, together with the fact that the southern side setback does not comply with the SDCP, results in a built form that is not consistent with the proportions of the built form envisaged by the building envelope controls in the SDCP and is therefore not consistent with "planned residential density" as it might be expressed through the built form controls in the SDCP.
In circumstances where an objective of a development standard is descriptive of what results from compliance with the standard, it can be difficult to achieve consistency with the objective in the event of non-compliance. On the Site of the proposed development, I accept the evidence of Ms McCabe that there could be appropriate built form density that is consistent with the objective of cl 4.1A notwithstanding the breach of the minimum lot size in cl 4.1A(2). As stated in her evidence, this "could reasonably be a dual occupancy, multi dwelling housing or an RFB form" (Ex 4 p 8). However, for the reasons expressed above, I do not accept that the proposed development is consistent with the objective to "achieve planned residential density" in the circumstances of the Site and based on the design of the built form.
In order to grant development consent to a development application that contravenes a development standard, cl 4.6(4)(a)(ii) requires that the Court, in exercising the functions of the consent authority, be satisfied that 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". As I am not satisfied that the proposed development is consistent with the objective of the standard in cl 4.1A, I cannot be satisfied that the proposed development will be in the public interest. Accordingly, development consent cannot be granted.
On this basis, the development application must be refused and there is no utility in considering the other matters about which I am required to be satisfied pursuant to cl 4.6(4)(a).

The streetscape presentation

The Council also contends that the bulk, scale and massing of the proposed development does not respond to its immediate context and the desired future character of the streetscape and surrounding area. It relies on the evidence of Ms McCabe, who opines that the height and extension of the building down the rear yard results in an unacceptable massing and scale relationship with adjoining properties. Her evidence is that the street maintains a low-scale character, and the proposed development at the height and massing proposed will be a discordant element in the street and will be an overbearing structure when juxtaposed against the rear yard of the detached dwellings to the south in the R2 zone. Further, Ms McCabe's evidence is that the unrelieved height is not appropriate in the context of the interface with the R2 zone.
Developer Entity relies on the evidence of Mr Betros to the contrary, that the proposed development largely complies with the built form controls and is therefore appropriate in its context. He opines that any other development of lesser scale, such as a dual occupancy, could have smaller setbacks and would therefore have a greater impact on adjoining development and in the streetscape. Developer Entity also points to other development approved or under construction in the vicinity of the Site, and says that the proposed development is of a scale similar to that which has been approved and already in existence in the immediate locality.

The proposed development is not compatible in the streetscape

The issue with evidence and submissions that compare the proposed development with alternate options that have smaller setbacks and a potential for greater impacts is that the acceptability of a proposed development is not determined by reference to other possible forms of development. Instead, the proposed development must be assessed in accordance with s 4.15(1) of the EPA Act, which includes consideration of the applicable controls under the SDCP. Having regard to those controls, I find that the bulk and scale of the development as it presents to the street is not appropriate for the Site. I reach this conclusion for the reasons that follow.
The SDCP contains a specific control, at Part C Chapter 2.5, that requires new multi dwelling housing "when viewed from the street or other public places is to be compatible with the predominant character and architectural detail of existing residential development in the street". In addition, the objectives of the controls concerning the site width and size requirements at Chapter 2.2, with which the proposed development does not comply, includes ensuring "that the amenity, character and environmental quality of the Strathfield Municipality is maintained by grouping together compatible residential development".
In considering compatibility with context and existing character in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, the Court stated that the character needs to be defined and that the "most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping" (at [26]).
I accept the evidence of Ms McCabe concerning the context of the Site and the scale of the surrounding development, which is not disputed by Mr Betros. The context of the Site comprises rear yards of detached dwelling houses to the immediate south with frontage to Badgery Avenue, the side and rear yard of the dwelling at 1B Badgery Avenue which fronts MacKenzie Street, and the two-storey townhouse development to the south. The balance of the street is a mix of one and two-storey detached dwelling houses which are set back from the street frontage and side boundaries. The townhouse development to the north is unobtrusive when viewed from the streetscape due to its low-scale appearance as a single storey with the second storey within a pitched roof form, with a built form width at the street frontage greater than its height. I accept the evidence of Ms McCabe that the scale and height of these properties is unlikely to change, which is a factor that determines the character in the context of this site. I accept her evidence that the street therefore maintains a predominant character that is low-scale.
In contrast, the proposed development maximises the height of the built form on a narrow lot that does not comply with the minimum lot width control in the SDCP for multi dwelling housing. It then seeks to maintain side setbacks that are largely compliant with the building envelope controls, which pushes the built form to the centre of the Site in a narrow unrelieved three-storey form which is jarring in the streetscape and out of character with the low scale development to the north and the south. For that reason, I accept the conclusion reached by Ms McCabe that the proposed development is a discordant element in the streetscape, which is supported by the East elevation shown at Figure 2.
Whilst I accept the evidence of Mr Betros that the third storey presents within a pitched roof form when viewed from the rear of the properties along Badgery Avenue, it does not present that way to the street. Instead, the third storey presents to the street within an unarticulated façade with a wall height that is highly visible, and is exacerbated by the narrow width of the built form.
Contrary to the position advanced by Developer Entity, the recent approvals and recent development in the vicinity of the Site do not provide assistance to the proposed development in achieving an outcome that is "compatible with the predominant character and architectural detail of existing residential development in the street", as they are on sites with different characteristics and different streetscape contexts. The dwelling houses along Badgery Avenue are not within the same street, and do not have frontage to MacKenzie Street. The dwelling at 2-4 Badgery Avenue, on the corner of MacKenzie Street and Badgery Avenue, spreads its height across a wider built form on a wider site when compared to the proposed development, such that the narrow tall presentation of the proposed development remains incompatible with the predominant character even when considered in the streetscape context in which 2-4 Badgery Avenue exists.
For the reasons expressed above, the narrow unrelieved three-storey form that presents to the street does not achieve the control guideline in the SDCP to be "compatible with the predominant character and architectural detail of existing residential development in the street" (SDCP Part C Chapter 2.5). I also do not consider that the objective of that guideline is achieved, which is to "ensure that residential development is of a type, height and scale that is generally compatible with or which improves the appearance of existing buildings and contributes positively to the future character of the street." Instead, it is a discordant element in the streetscape and is in stark contrast to the low-scale development in the street, particularly when considered in the context of the adjacent townhouse development that is unlikely to be redeveloped in the future. Further, its narrow and tall wall height presenting to the street does not improve the appearance of existing buildings or contribute positively to the future character of the street. For the same reasons, I consider that the proposed development does not result in the grouping of compatible residential development and therefore does not meet one of the objectives of the controls concerning the site width and size requirements in Chapter 2.2, to ensure "that the amenity, character and environmental quality of the Strathfield Municipality is maintained by grouping together compatible residential development". As such, the proposed development should be refused on the basis that it does not comply with the guidelines in Chapter 2.5 of Part C of the SDCP or with objective (a) of those guidelines, and does not comply with the control in Chapter 2.2 concerning site size and width or with objective (b) of that control.

Other issues raised by the Council

The Council raised a number of other issues in its contentions, which were supported by the evidence of Ms McCabe. This includes, inter alia, the length of the proposed built form, the visual impact when viewed from the rear of the dwellings that front Badgery Avenue and the amenity of the private open space located along the northern boundary.
However, I have found that, in accordance with cl 4.6(4) of the SLEP, development consent cannot be granted to the proposed development in circumstances where it contravenes the development standard in cl 4.1A and where I am not satisfied that the proposed development is consistent with the objective of the standard. I have also found that the proposed development should be refused on the basis that its streetscape presentation is unacceptable in its context in light of the provisions in Part C of the SDCP. For those reasons, the development application should be refused and there is no utility in considering any of the other issues raised by the Council.

Final orders

The Court orders that: 1. The appeal is dismissed. 2. The development application (DA2021/235) for the demolition of existing structures and construction of four two-storey townhouses with attic, a shared single basement level and ancillary landscaping at 33 MacKenzie Street, Homebush, is determined by refusal. 3. Exhibits 1, 4, C and H are retained and the remaining exhibits are returned.

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: 16 March 2023

Breach of the minimum lot size development standard

As set out above, cl 4.1A of the SLEP establishes a minimum lot size of 1000m2 for multi dwelling housing in the R2 zone. The site does not meet that minimum lot size, and has an area of 696.8m2. The objective of the clause is to "achieve planned residential density in certain zones". Clause 4.1A is also subject to the provisions of cl 4.6, which allow development consent to be granted notwithstanding a breach of a development standard. However, there is power to grant development consent only if the matters in cl 4.6(4) are satisfied. In considering whether the state of satisfaction required by cl 4.6(4)(a) has been met, I summarised the relevant principles in Abrams v Council of the City of Sydney [2019] NSWLEC 1583 as follows: "32 Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action"), for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that: • The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)), • The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)), • The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and • The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). 33 Consistent with the decision of the Court of Appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, the Court, in exercising the functions of the consent authority, must "in fact" be satisfied of the above matters. The state of satisfaction that compliance is "unreasonable or unnecessary" and that there are "sufficient environmental planning grounds" to justify the contravention (the first two dot points above) must be reached only by reference to the cl 4.6 request.

At a glance

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Judgment (8 paragraphs)

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Cases Cited (8)