[2019] NSWLEC 61
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116
[2013] NSWLEC 147
Hrsto v Canterbury City Council (No 2) (2014) 204 LGERA 148
[2014] NSWLEC 121
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256
Source
Original judgment source is linked above.
Catchwords
[2019] NSWLEC 61
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116[2013] NSWLEC 147
Hrsto v Canterbury City Council (No 2) (2014) 204 LGERA 148[2014] NSWLEC 121
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256
Judgment (13 paragraphs)
[1]
Judgment
COMMISSIONER: The Applicant, Eastern High Pty Ltd is the owner of land known as 15 Boyd Street, Turramurra (Lot 1 in DP 27304) and proposes to redevelop the site as multi dwelling housing containing four dwellings over four storeys. The Applicant appeals, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act), the deemed refusal of their development application by Ku-ring-gai Municipal Council (the Respondent).
The development application seeks consent for:
Demolition of existing structures,
Tree removal,
Construction of multi dwelling housing consisting of four dwellings with basement car parking,
A new 1.8m high fence along the western and south-western boundaries of the site,
Landscaping and site works.
The matter was listed for conciliation on 2 November 2022 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was terminated, and the matter was subsequently listed for hearing.
On 9 February 2023, the Court granted leave for the amendment of the development application with the following amendments:
1. Each of the four dwellings were provided with separate access at ground floor level.
2. The setback from Boyd Street was increased from 3m to 6m.
3. The gross floor area (GFA) was confirmed as 783.84m2, resulting in a floor space ratio (FSR) of 0.8:1.
4. The proposed building was modified to setback the second storey from the lower floors, and to introduce horizontal elements. Further design modifications were made to satisfy the requirements of the character provisions in the Ku-ring-gai Development Control Plan 2015 (DCP 2015).
5. An amended written request seeking to vary the minimum lot size provisions in Ku-ring-gai Local Environmental Plan 2015 (LEP 2015).
6. The floor to floor height from the first floor to second floor was increased to 3.2m to allow for terrace drainage, structural set-downs and insulation.
7. Shading was provided for the openings to the dwellings.
8. Provision of an acoustic assessment, a traffic and parking statement and construction traffic management plan.
The Applicant was further granted leave on 18 April 2023 to amend their development application following the receipt of the joint expert reports. Those amendments were:
1. An increase to the setback of the second floor unit from Boyd Street.
2. Internal dwelling amendments responsive to the parties' urban design experts' evidence.
3. An amended written request seeking to vary the minimum lot size provisions in LEP 2015.
4. Amended landscaping and engineering plans refining the position of the driveway to allow the retention of tree 17.
5. Amended civil engineering plans to reflect the agreed position of the engineering experts in their joint report.
[2]
Issues
Notwithstanding amendments to the development applications, the Respondent maintains that the development application warrants refusal on the following grounds:
1. Development is properly characterised as a residential flat building, a use which is prohibited in the R3 Medium Density Residential zone pursuant to LEP 2015.
2. The lot size and minimum dimensions of the subject site do not meet the standards at cl 6.6 in LEP 2015. Further, the Applicant's written request fails to satisfy the test at cl 4.6 of LEP 2015 and should not be upheld.
3. The proposed development provides inadequate setbacks from Boyd and Jersey Streets and the setbacks proposed do not comply with the requirements in Part 6 of the DCP 2015.
4. The building design appears as a residential flat building and is inconsistent with the controls for multi dwelling housing in Part 6 of DCP 2015.
[3]
Subject Site & Locality
The site is identified as Lot 1 DP 27304, a corner lot which has a primary frontage to Boyd Street and a secondary frontage to Jersey Street. The site has a maximum fall of approximately 7.05m, with the lowest point in the south-western corner of the site.
The site is zoned R3 Medium Density Residential under LEP 2015. It adjoins R2 Low Density Residential zoned land on the opposite side of Jersey Street.
[4]
Public submissions
The development application was notified by the Respondent for 30 days from 30 March 2022 in accordance with the public notification process specified in the Ku-ring-gai Community Participation Plan. The main issues raised in the submission can be summarised as:
The development application proposes a prohibited form of development as the proposal does not satisfy the definition of multi dwelling housing.
There is insufficient information confirming compliance with building height and FSR controls in LEP 2015.
The written request seeking a variation to Clause 6.6 - Requirements for multi dwelling housing and residential flat buildings of LEP 2015, is inadequate noting that the site area is 980.1sqm.
The offer made to purchase 6 Jersey Street (adjoining property) was not reasonable and an insufficient level of negotiation has taken place.
A potential building footprint/envelope on an isolated site (6 Jersey Street) has not been provided.
Non-compliant building setbacks and inadequate landscaping.
The proposed dwelling mix is non-compliant with the planning controls.
The design of the building does not express the scale and mass of villa and townhouse development. The building presents as a part three, part four storey residential flat building in shape and structure.
The top storey is not appropriately stepped back from the levels below, particularly on the northern and south-western sides, which does not assist in minimising its visual bulk or preventing its form from appearing as a residential flat building.
Balconies and planters of dwellings 01, 02, 04 and 06 create awkward alignments between levels that appear to bear no relationship to the level below and has implications for proposed floor to floor height.
The duplicated stair and ramp entries create a compromised entry character for both frontages.
The reliance on painted render finish has implications for design quality and will result in an increased need for maintenance and avoidable costs over the life cycle of the development.
Dwelling 03 is identified as the Platinum Level unit, however, confirmation of its allocated car parking is required.
External shading is required for solar protection of openings particularly with aspects to east and west and also north should be integrated as a cohesive design element.
The impacts on T17 from the proposed driveway are not acceptable.
A deep soil landscape compliance plan is not provided confirming compliance and there is insufficient tree replenishment.
A driveway longitudinal section not provided.
Swept path analysis not provided.
Waste collection is proposed kerbside rather than internal to the development which is a requirement under DCP 2015.
There is no indicative construction traffic management plan.
There is a requirement for a footpath along Boyd Street.
At the commencement of the hearing a member of the public addressed the Court onsite detailing their concerns with the development application, namely that:
1. The development was not appropriately characterised as a townhouse or villa style development which is the type of development intended for "multi dwelling housing".
2. The site planning of the development directs impacts towards the interface with the R2 Low Density zone. In particular the location of the driveway and the proliferation of terraces will impact the amenity of the low density zone by increasing noise, traffic and overlooking.
3. The architectural style and the building form replicate a residential flat building, a density of development not anticipated for the site.
In determining the development application, I have read and considered the submissions received by the public as required by s 4.15(1)(d) of the EPA Act.
[5]
How is the development characterised?
The first issue raised by the Respondent is that the development proposed in the development application is a prohibited use in the R3 Medium Density Residential zone. The Council argues that the built form of the proposal is of an urban typology better representative of a residential flat building and is properly characterised as a residential flat building and is therefore prohibited in the R3 Medium Density Residential zone.
The definition of multi dwelling housing, which is set out below, excludes residential flat buildings, as does the definition of residential flat buildings which excludes multi dwelling housing. Applying the zoning table residential flat buildings are prohibited in the R3 Medium Density Residential zone.
The relevant zoning table in LEP 2015 is extracted below:
Zone R3 Medium Density Residential
1 Objectives of zone
• 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 provide a transition between low density residential housing and higher density forms of development.
2 Permitted without consent
Home occupations
3 Permitted with consent
Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dwelling houses; Environmental protection works; Exhibition homes; Flood mitigation works; Group homes; Home-based child care; Home businesses; Home industries; Hostels; Multi dwelling housing; Neighbourhood shops; Oyster aquaculture; Places of public worship; Recreation areas; Respite day care centres; Roads; Seniors housing; Shop top housing; Tank-based aquaculture
4 Prohibited
Any other development not specified in item 2 or 3
The Respondent argues that in applying section (4) of the R3 Zone Land Use Table, if the development is characterised as a 'residential flat building', it is prohibited.
The relevant definitions in LEP 2015 are relevant:
multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building.
Note -
Multi dwelling housing is a type of residential accommodation - see the definition of that term in this Dictionary.
…
residential flat building means a building containing 3 or more dwellings, but does not include an attached dwelling, co-living housing or multi dwelling housing.
Note -
Residential flat buildings are a type of residential accommodation - see the definition of that term in this Dictionary.
The Respondent says that the development proposed in the development application is plainly a residential flat building as it is:
A building
Containing three or more dwellings
The Respondent concludes that, as a result of falling within the definition of residential flat building, the development is firstly unable to meet the definition of multi dwelling housing and secondly the development is prohibited.
In response to the submissions of the Applicant, the Respondent argues that the development is not multi-dwelling housing for the following reasons:
"a. Firstly, the definition does not refer to a building.
b. Next, the definition has the following five elements-
i. Three or more dwellings;
ii. (whether attached or detached)
iii. on one lot of land
iv. Each with access at ground level
v. But does not include a residential flat building"
Respondent's written submissions 20 April 2023
The Respondent, applying the definition of 'dwelling' in LEP 2015, argues that the development for which consent is sought in the development application fails the fourth and fifth element of the multi dwelling housing definition. They argue:
"31. Plainly, provision of access at ground level does not mean provision of access at the first floor or second floor, or an even higher floor of the development.
32. The provision of stairs does not solve the problem, as the Applicant appears to contend.
33. As designed, stairs for each dwelling form part of the each dwelling. The stairs also are the means of access to other parts of each dwelling.
34. True it is that the stairs themselves could provide access at ground level if in fact the stairs themselves are at ground level however that is not the case here.
35. The stairs for units on the first and second floor are continued past the ground level up to the first at second levels. As such they are not capable of providing access at ground level. That is enough in the Council's submissions to conclude that the development does not constitute multi dwelling housing.
36. The proposition can be tested this way. If stairs are a satisfactory means of providing access for a "room or suite of rooms" from any level to the ground floor for the purpose of meeting the definition of multi dwelling housing, then the device used by the Applicant to assert each dwelling has "access at ground level" can lead to absurd results."
Respondent's written submissions 20 April 2023
Further, the Respondent submits that an approach to characterisation which argues that the stairs do not constitute a suite of rooms (or part of a room or suite of rooms), thereby not being part of the 'dwelling', has the same result. Consequently, the Respondent concludes that the stairs in the architectural design proposed by the development application are not "access at ground level" for the "room or suite of rooms" which comprise each dwelling as required by the multi dwelling housing definition. The Respondent's submissions conclude that the development for which consent is sought in the development application is properly characterised as a residential flat building, thereby being prohibited.
In the alternative, the Applicant asserts that the development as proposed in the development application is appropriately characterised as multi dwelling housing, a use which is permitted with consent in the zone. The Applicant argues that in these proceedings, the Court should follow the reasoning of Brown C in Mount Annan 88 Pty Ltd v Camden Council [2016] NSWLEC 1072 ("Mount Annan v Camden") where the Court held that the provision of direct access at ground level or indirect access by stairs satisfied the access requirement in the definition of multi dwelling housing ("each with access at ground level").
[6]
The proposed development is permissible with consent.
A development application can only be made to carry out development for which consent is required by an environmental planning instrument, in this case LEP 2015. A development application cannot be made for development that is prohibited.
The task of correctly categorising the purpose, or purposes, of a particular use or development application is a threshold question in determining whether a particular development application is capable of lawful determination. If the Court accepts the submission of the Respondent, that the proposed use is prohibited, the current development application is an ineffective application, and the Court would have no power to approve it.
Characterisation of development to determine permissibility focusses on whether the proposed development falls within a nominate or innominate purpose of development that is permissible with consent in the relevant zoning table. In this matter, the relevant zoning table for the R3 Medium Density Residential zone is extracted at par [13]. Relevantly, this zoning table lists specific uses at Section 2 permitted without consent, and at Section 3 those uses permitted with consent. Section 4 of the zoning table has the effect of making any use not listed in either Section 2 or 3 prohibited. The use of residential flat building is a use not nominated in either Section 2 or 3 of the zoning table. Multi dwelling housing is a nominated use listed at Section 2.
For the reasons that follow, I accept and prefer the submissions of the Applicant and find that I am satisfied that the development for which consent is sought is properly characterised as "multi dwelling housing", a permissible use in the R3 Medium Density Residential zone in LEP 2015.
1. Consistent with the approach of the Court in Hrsto v Canterbury City Council (No 2) (2014) 204 LGERA 148; [2014] NSWLEC 121 at [46]-[50], where a proposed development relies upon a nominated permissible use for permissibility, the exercise is primarily one of statutory construction of that nominated permissible use, followed by a consideration of whether the proposed development falls within that construction. In other words, the process of characterisation commences with a purpose that the instrument expressly nominates, in this case multi dwelling housing: Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [30].
2. In considering the statutory construction of a local environmental plan, the general principles of statutory construction apply, which allow a particular provision to be construed within the context of an instrument.
3. As outlined by the Respondent, the definition of multi dwelling housing in LEP 2015 has five elements. In my view, the use for which consent is sought in the development application meets those elements as follows:
1. Three or more dwellings: the proposed development seeks consent for four dwellings.
2. (whether attached or detached): the development proposes the four dwellings over four levels. The dwellings are attached.
3. on one lot of land: the development is proposed over one lot being Lot 1 in DP 27304.
4. Each with access at ground level: each dwelling within the development has access via a door and stair at ground level accessed from Boyd Street. I accept and prefer the submissions of the Applicant that in providing access to each dwelling at ground level through the provision of an entry door and stair, the development meets this element of the definition. I adopt and apply the reasoning of the Court in Mount Annan v Camden, Katerinis v Canterbury-Bankstown Council and Level 1 Construction v Canterbury-Bankstown. I am not persuaded by the submissions of Mr Farland that the fact that the stairs for the upper units travel past the ground floor exclude them from meeting the definition 'each with access at ground level'. A stair, by its nature as a building element, provides access at ground level and comprises flights which travel up a building to higher levels. The number of flights contained in the stair in my view does not stop it meeting the element of access at ground level.
5. But does not include a residential flat building: Consistent with the reasoning of the Court in Mount Annan v Camden and Level 1 Construction v Canterbury-Bankstown, given I am satisfied that the proposed development fits within the definition of "multi dwelling housing", applying the terms of the definition, it cannot also be a residential flat building.
I am satisfied that the development proposed in the development application is a use permissible with consent in the R3 Medium Density Residential zone, that use being multi dwelling housing.
[7]
Should cl 6.6: Requirements for multi dwelling housing of LEP 2015 be varied?
The proposed development seeks to vary the minimum land size area and dimension standards in cl 6.6 (2) of LEP 2015, 1200m2 and 24m respectively. That provision states:
6.6 Requirements for multi dwelling housing and residential flat buildings
(1) The objectives of this clause are -
(a) to provide site requirements for development for the purposes of multi dwelling housing and residential flat buildings so as to provide for the orderly and economic development of residential land while maintaining the local character, and
(b) to ensure that lot sizes and dimensions of medium and high density residential sites allow for generous landscaped areas and setbacks to ensure the amenity of adjoining properties and to support the desired future character of these areas.
(2) Despite any other provision of this Plan, development consent must not be granted for the erection of multi dwelling housing or a residential flat building on a lot in a residential zone unless the lot has an area of at least 1,200 square metres and minimum dimensions (width and depth) of at least -
(a) if the area of the land is less than 1,800 square metres - 24 metres, or
(b) if the area of the land is 1,800 square metres or more - 30 metres.
(3) Despite subclause (2), development consent must not be granted for the erection of multi dwelling housing or a residential flat building on a lot on land identified as "Area 1" on the Lot Size Map unless the lot has an area of at least 5,000 square metres.
(3A) Development consent must not be granted for the erection of multi dwelling housing or residential flat buildings on land identified as "Area 2" on the Lot Size Map unless the lot is at least 4,300m2.
(4) For the purposes of this clause, if a lot is a battle-axe lot or other lot with an access handle, the area of the access handle is not to be included in calculating the lot size.
The subject site has an area of 980.1m2 and a depth and width less than 24m, thereby varying the numerical requirements of cl 6.6(2) of LEP 2015. The Applicant relies on the satisfaction of cl 4.6 of LEP 2015 to vary the provision.
Part of the development application includes a written request to vary the development standard at cl 6.6(2) of LEP 2015 prepared by Minto Planning Services (the written request). The written request nominates the variations as follows:
"The subject site has an area of 980.1m2 with a frontage width to Boyd Street of 50.292m and a frontage to Jersey Street 39.292m and therefore does not comply with the numerical requirements of this clause [cl 6.6(2) of LEP 2015]."
(Exhibit G)
The development application seeks two departures to cl 6.6 in LEP 2015. Firstly, it seeks to vary the site area standard at sub cl (2) of 1200 square metres as the site has a total area of 980.1 square metres. Secondly, it seeks to vary the minimum width and depth dimensions of the site of 24m at sub cl (2)(a) as, given its shape, the site does not have a minimum width of 24m at the northwestern part of the site. This is graphically represented in the written request as follows:
[8]
Figure 1: Extract of Exhibit G
Clause 4.6(4) of LEP 2015 establishes preconditions that must be satisfied before 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")). It is well established that the state of satisfaction required by cl 4.6(4)(a) of LEP 2015 mandates that the Court, in exercising the functions of the consent authority, must in fact be satisfied of the matters in cl 4.6(3), and that the state of satisfaction must be reached by reference to the written request.
Further, the "development" referred to in cl 4.6(2), (3) and (4) of LEP 2015 is the development that is the subject of the development application, being the proposed multi dwelling housing: Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 ("Baron") at [9].
The matters at 4.6(3) of LEP 2015 are as follows:
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the Applicant that seeks to justify the contravention of the development standard by demonstrating -
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
Further, the consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a) of LEP 2015. The consent authority must be satisfied that the Applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposed 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), 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.
On appeal, the Court has the power under cl 4.6(2) to grant consent to a 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) of the LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2015 (Initial Action at [29]).
[9]
Are there sufficient environmental planning grounds to justify the contravention?
Clause 4.6(3)(b) of LEP 2015 requires the consent authority to consider a written request from the Applicant that seeks to justify the variation by demonstrating there are sufficient environmental planning grounds.
In these proceedings the written request seeks to justify the contravention of the development standard on grounds that it describes as environmental planning grounds. The environmental planning grounds detailed in the written request are as follows:
"• The site is zoned R3 - Medium Density Residential and multi dwelling housing is ordinarily permissible upon that land with the consent of the Council.
• The site adjoins a single allotment to the south west consisting of a dwelling house. Amalgamation with this allotment is not possible on the basis that the owners of No.6 Jersey Street have provided a letter to the applicant stating that they do not indent to sell their property.
• There is no other property which the subject property can amalgamate with in order to achieve an allotment which complies with the minimum allotment size or dimension requirements of Clause 6.6 of the LEP.
• Enforcing strict compliance with this clause would prohibit the use of the site for a multi-dwelling housing which is the predominant built form anticipated by the LEP for this locality.
• The proposal provides for the orderly and economic development of land.
• This submission together with the documentation provided in support of the proposal demonstrates that the site is capable of otherwise supporting development which satisfies the objectives of the zone and provides for development which will make a positive contribution to the character of the area.
• The proposal complies with council's controls in relation to height of building, floor space ratio, site coverage and deep soil landscaping."
(Exhibit G)
[10]
Submissions
Dr Smith, for the Applicant argues that the Court would be satisfied that the written request is well founded and should be upheld. He argues that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standard. In particular, he argues that the two grounds of firstly, the provision of additional housing, and a variety of housing types, in a highly accessible location and secondly, and the inability to amalgamate the site with the adjoining land, are an environmental planning ground that is consistent with the objects (c) and (g) at s 1.3 of the EPA Act and are sufficient.
Further, Dr Smith argues that the current proceedings are distinguished from the Court's reasoning in Initial Action as the variation in these proceedings is directed to an aspect of the site (its area and dimensions), not an aspect of the development (such as maximum height or floor space).
In the alternative, Mr Farland for the Respondent, argues that the Court would not be satisfied that the written request advances sufficient environmental planning grounds. Firstly, using as an example the grounds advanced for the provision of additional accessible housing, he argues that the planning grounds are not specific to this development application and could apply to any development. Secondly, he argues that the grounds advanced are not directed to the contravention and in many cases advances benefits of the development as a whole. Mr Farland notes this approach is contrary to the reasoning of Initial Action at [24] which requires the environmental planning grounds advanced in the written request to focus on the contravention of the development standard and why that variation is justified, not to simply promote the benefits of carrying out the development as a whole.
[11]
Findings
I am not satisfied that the written request demonstrates sufficient environmental planning grounds to justify either of the contraventions of the development standards at cl 6.6(2) of LEP 2015, those being the lot area standard and the minimum width and depth dimension standard, refer [32].
In Initial Action at [24], Preston CJ stated, that the
"… focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds".
Further he stated,
"… the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]".
On this basis, the elements for consideration in determining whether I am satisfied that there are sufficient environmental planning grounds are:
Firstly, whether the grounds advanced are environmental planning grounds;
Secondly, whether the environmental planning grounds advanced in the written request focus on the aspect or element of the development that contravenes the standard, or in the alternative, promote the benefits that will be realised by the development as a whole; and
Thirdly, I must be satisfied that the environmental planning grounds are "sufficient" to justify, or inform, the aspect or element that contravenes the development standard.
The first point to note about the written request is that it approaches the process of demonstrating that there are sufficient environmental planning grounds to justify the contravention of the two development standards at cl 6.6(2) of LEP 2015 collectively rather than separately addressing the contravention of the lot area and dimension standards: s 1.4 of the EPA Act.
Taking the grounds advanced in the written request extracted at [42] in seriatim, the first ground is an assertion of permissibility and is not an environmental planning ground but a statement of fact.
The second and sixth ground advanced in the written request can be described as environmental planning grounds to the extent that they seek to advance an environmental or planning benefit, in this case, in the form of additional density in a highly accessible location and providing for the orderly and economic use of the land. However, the written request fails to establish that those benefits are integral to or arising from the variation to either of the standards at cl 6.6 of LEP 2015. The written request does not seek to argue that these benefits are tethered to, or arise from, the breach. Secondly, to the extent that the proposed development results on the provision of well-located housing which adds to the diversity of housing stock, in my view these are benefits arising from the development as a whole, not from the variation to the lot size or minimum dimensions. Further, if they could be agreed to be an environmental planning ground focussing on these contraventions, in my view grounds two and six are insufficient to justify the variations sought. For these reasons, the first, second and sixth grounds are inadequate to justify the contravention of the standards at cl 6.6(2) of LEP 2015.
The third and fourth grounds advanced in the written request focus on lot amalgamation of the subject site with the adjoining properties. Essentially, the written request seeks to justify the variation to the lot size and dimension standards on the basis of efforts firstly to amalgamate the site with adjoining lots and secondly on the lack of alternative sites for amalgamation. I am not persuaded by the written request that the variation of the standards in cl 6.6(2) of LEP 2015 is justified on these grounds. Firstly, to the extent it can be argued that the lack of successful negotiation with an adjoining land owner to form a larger development site is an environmental planning ground in that it allows for the development of the site to have a greater density than would otherwise be permitted, that argument is not made out or quantified in the written request. There is no evidence or reasoning in the written request to ground such an assertion of benefit. Secondly, the written request makes no argument as to how this ground is tied to the variation of the two standards or how this ground is sufficient to warrant the extent of the variations sought. For these reasons, grounds three and four are inadequate to justify the contravention of the standards at cl 6.6(7) of LEP 2015.
Grounds five, seven, and eight are either statements of fact about the applicable planning controls or about the proposed development. They are not environmental planning grounds, nor are they sufficient to justify the breach in the standards sought by the written request. For these reasons grounds five, seven, and eight are inadequate to justify the contravention of the standards at cl 6.6(7) of LEP 2015.
Further, when looked at collectively I find I am not satisfied that the environmental planning grounds advanced in the written request are sufficient grounds to justify the contravention of the site area and dimension standards at cl 6.6(2) of LEP 2015.
Clause 4.6 of LEP 2015 is a precondition that must be satisfied before consent can be granted. For the preceding reasons, I am not satisfied under cl 4.6(4) of LEP 2015 and consequently there is no power to grant consent to the development application, and the application must fail.
[12]
Orders
The Court orders that:
1. The appeal is dismissed.
2. Development application DA0101/22 seeking consent for demolition of the existing structures and construction of a multi dwelling housing development with four dwellings, basement parking and associated works at 15 Boyd Street, Turramurra (Lot 1 in DP 27304) is determined by the refusal of consent.
3. The exhibits are returned with the exception of Exhibits 1, G, and C.
[13]
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: 20 July 2023
The relevant paragraphs from Mount Annan v Camden on which the Applicant relies are extracted below:
"21. In considering the different submissions, I agree with Ms Duggan that the proposed development is characterised as a "multi dwelling housing". The definition of 'multi dwelling housing' is not overly different from the definition of 'residential flat building' except that to be defined as "multi dwelling housing" the dwellings must be "on one lot of land, each with access at ground level". Even though the form of housing proposed in this application with 1 bedroom dwellings on ground level and the 2 and 3 bedroom dwellings over two levels and above the ground floor units, is not a common form of the development; this form nonetheless satisfies the definition by ensuring that each dwelling is accessed from ground level; with direct access to the ground level dwellings or via stairs to the upper level dwellings.
22. If the proposed development fits within the definition of "multi dwelling housing", it cannot be a "residential flat building"."
The Applicant further relies on the decisions of the Court which the Applicant argues are consistent with the reasoning of Brown C in Mount Annan v Camden, those being Katerinis v Canterbury-Bankstown Council [2017] NSWLEC 1479 ("Katerinis v Canterbury-Bankstown Council") at [9] and Level 1 Construction Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1405 at [34]-[46] ("Level 1 Construction v Canterbury-Bankstown"), both decisions of Gray C.
Further, the Applicant submits that the Respondent's submissions should not be preferred by the Court arguing:
"22. The Applicant submits that, it is not properly arguable that the dedicated stairway entrance which is located at ground level is not accessible to or for the proposed dwelling. Further, the access is at ground level - that is where the door to the stairs is located and entered. This being the case, there is "access at ground level" within the meaning of that phrase in the definition of "multi dwelling housing". If it had been the attention of the legislature that all dwellings, to fall within the definition of "multi dwelling housing", needed to be located at ground level, then the definition would have been differently drafted.
…
25. … a purposive approach dictates the outcome as outlined because a different outcome as outlined because a different outcome is not available on the current drafting of the definition. This is not a case where two meanings are open in statutory interpretation. The words are not ambiguous and therefore the provision must be given its ordinary meaning."
(Applicant's written submissions 20 April 2023)
Finally, in response to the submissions of the Respondent, the Applicant submits that the fact that the stairs travel past the first floor does not mean that they do not meet the definition requirement of "access at ground floor". The Applicant submits that the length of the stairs or the number of flights does not affect whether the development has provided "access at ground floor" as required by the definition of multi dwelling housing.