Eather v Randwick City Council

Proceedings

1. The proceedings were initially subject to mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). However, no agreement was reached and the matter proceeded to hearing.
2. Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy issued 1 July 2020. After a Site inspection, the hearing was conducted in a "virtual" courtroom arrangement under the Microsoft Teams platform.

Issues

1. Proposed Lot 110 would be 392.9m2, and proposed Lot 111 would be 373.7m2. The applicable minimum subdivision lot size is 400m2. The proposed subdivision would provide for a lot size contravention of 1.75% for Lot 110 and 6.5% for Lot 111 (Ex 1, p 6). The central issue in these proceedings is whether the application should be refused because the proposed subdivision is under RLEP's minimum lot size standard. The written request seeking approval notwithstanding the contravention, submitted on behalf of the Applicant, is seen by Council to be inadequate.
2. Other issues raised in the contentions include: (1) inconsistency with zone objectives (a matter I will need to attend to in the consideration of the cl 4.6 written request), (2) undesirable precedent, and (3) inconsistency with requirements of Randwick Development Control Plan 2013 (RDCP) relating to minimum lot size and frontage requirements.
3. Town planning experts were engaged by each of the parties. Mr M Swain represented the Applicant and Mr S Faridy represented Council.

Statutory setting

1. Subdivision is permitted with consent pursuant to the provisions of cl 2.6 of the RLEP.
2. Clause 4.1 provides for minimum subdivision lot size of 400m2. As indicated above, the proposed lots would contravene that development standard and the Applicant relies on the provisions of cl 4.6 of RLEP to seek approval notwithstanding the contravention.
3. Clause 4.1C allows dual occupancy development on sites down to 450m2.
4. Clause 4.1D allows the subdivision of attached dual occupancy development on R2 land where such development was approved prior to 6 July 2018, notwithstanding the 400m2 minimum lot size control at cl 4.1. It is not in dispute that the subject application does not benefit from cl 4.1C.
5. Control 2.1(i) under Part C1 of RDCP requires a minimum frontage width of 12m. The proposed subdivision would have street frontages of 7.62m each, a contravention of some 45%.

Contravention of minimum lot size development standard

1. The applicant is seeking an exception for the contravention of development standards under cl 4.6(2) of the RLEP. The permissive power in cl 4.6(2) is subject to the restrictions in subcll 4.6(3)-(5): (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. (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 Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.
2. Thus, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the permissive power under cl 4.6(2) to grant development consent notwithstanding a development standard contravention (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ('Initial Action') at [14]).
3. The first opinion is in regard to a written request from the Applicant seeking to justify the contravention of the development standard and, specifically, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.
4. In this instance, the Applicant has opened the door to application of cl 4.6(2) by submission of a written request seeking to justify the contravention. The written request was prepared by Solutions Zane Land Use Planning Services and is dated January 2020 (the written request).

Whether compliance unreasonable or unnecessary

1. Mindful of cl 4.6(3)(a) of RLEP, the written request seeks to demonstrate that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first "Wehbe way", seeking to show how, otherwise, the development achieves the objectives of cl 4.1 of RLEP.
2. I reproduce the list of objectives of cl 4.1 below: (a) to minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties, (b) to ensure that lot sizes allow development to be Sited to protect natural or cultural features, including heritage items, and to retain special features such as trees and views, (c) to ensure that lot sizes are able to accommodate development that is suitable for its purpose.
3. In regard to objective (a), the written request relates adverse amenity impact to the form of the development on the Site and its accordance generally with applicable development standards. In terms of the subdivision itself, the minor nature of the contravention is emphasised. The argument makes sense to me that providing for changes to the cadastral property boundaries would not generally affect amenity of neighbours. I further accept that the scale of contravention is very low in relative terms.
4. In regard to objective (b), the written request submits that the proposed subdivision would not alter the approved built form, and thus not affect the protection or retention of nominated features. This argument is logical in my view. Here I note Council's concerns relating to the changing designation of the Site as a semi-detached dwelling, which brings certain additional development potential. However, this is not the matter before me here.
5. In regard to objective (c), the written request points to the conformance of the existing dual occupancy with relevant controls including RLEP's building height and FSR controls, and various DCP controls. This demonstrates the capacity of the proposed subdivision to "accommodate development that is suitable for its purpose, consistent with that which would be achieved on a compliant lot size configuration" (Ex C, p 6).
6. The written request adequately demonstrates that the objectives of the development standard have been achieved notwithstanding non-compliance with the minimum subdivision lot size controls. In turn, and in accordance with the first Wehbe way, I find that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

Whether sufficient environmental planning grounds

1. The written request nominates a series of environmental planning grounds which are seen as sufficient to justify the contravention (particularly at Ex C, p 7). The most relevant to me are as follows: "1. The very minor departure from the minimum lot size requirement will be such that the proposed subdivision will not alter the acceptable built form endorsed in the original consent 350/2018, which will commensurate with existing and likely future developments on adjoining and surrounding properties, in a manner similar to that achieved by a compliant lot size. 2. This subdivision is entirely consistent with the desired future character and anticipated subdivision pattern, as described in the (Local Strategic Planning Statement) and Housing Strategy. 4. The amenity impacts associated with the very minor strict numerical departure from the minimum lot size, will not alter the acceptable impacts in terms of height, bulk and scale, solar access, overshadowing, visual or acoustic privacy, as endorsed under consent 350/2018 for the proposed dual occupancy. The very minor strict numerical departure has also been compensated in respect of each of the proposed lots, by an otherwise substantial level of compliance with RLEP and DCP controls."
2. When considering the sufficiency of the environmental planning grounds nominated in the written request, it seems to me helpful to consider the Council's evidence and submissions in regard to the adverse environmental planning aspects of the contravention. I believe there were four main problems from Council's point of view.

Affordable rental housing supply

1. Mr Faridy said (Ex 2, par 1.20): "A dual occupancy under single ownership is more likely to be used by an extended family and will therefore has more chances to stay in the rental market. A subdivided dual occupancy can be sold to anyone and has potential to be used as owner occupied and potential loss of affordable housing from the rental market."
2. I am not convinced that this argument brings strong adverse weight when considering the adequacy of the environmental planning grounds posited in the written request. Smaller housing lot sizes, such as is proposed here, are reasonably seen as more affordable than larger lot housing; all other things being equal. The proposal would encourage housing affordability for home purchasers. Insofar as encouraging housing affordability for renters I accept the written request's comment that the quite minor scale of the departure from the numerical control comes into play here. That is to say, the controls already allow subdivision of dual occupancies very similar to the areas involved here, and to allow this minor discrepancy could not be seen as having a significant effect on the otherwise encouragement of rental housing affordability.

Change to building categorisation and consequential increased development potential

1. At par 1.14 of Ex 2, Mr Faridy expresses the following opinion: "I acknowledge that the proposed lots are just under the minimum size and percentage variation is very small. I am also of the view that an attached dual occupancy, for a casual observer, may appear as a large dwelling house. However, Torrens subdivision of a dual occupancy will result in change of building typology from dual occupancy to a semi-detached dwelling for which different set of controls and standards are applicable. It is therefore critical that the minimum required size for a free standing lot be compliant with the minimum required lot size. This minimum lot size in this instance is 400m2."
2. Mr Faridy goes on to detail the different floor space controls applying to semi-detached dwellings when compared to dual occupancy development (ibid par 3.6): "… the requested subdivision will change its typology to a semidetached dwelling which will not be bounded by the same standards and controls applicable to the approved dual occupancy development. By way of reference a lot between 300m2 to 450m2 is entitled for an FSR of 0.75:1 under Randwick LEP 2012. Whereas the applicable FSR standard for a dual occupancy in R2 is restricted to 0.5:1."
3. This argument does not weigh strongly as an adverse planning ground. The 400m2 minimum subdivision lot size control cannot be seen as a kind of fixture (in the sense that a variance of say 5% were beyond allowable). The 400m2 area cannot be seen as the end to be achieved by the clause (Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 [49]). The objective of the standard has been nominated in LLEP, with cl 4.6 to provide flexibility in regard to such controls if jurisdictional pre-requisites were to be overcome. Mindful of the objectives of cl 4.6, and the facultative function generally of the clause, it is too fine an exclusion to say subdivision potential must turn more or less precisely around the figure of 400m2. This proposal must be adjudicated on its own merits with future applications, potentially seeking approval for an FSR beyond the current controls applying to dual occupancy development, requiring their own merits assessment.

Streetscape character

1. Mr Faridy's concern was in regard to the streetscape character of Hastings Avenue. He disagreed with the wider streetscape character analysis undertaken in the written request including consideration of Lasseter Avenue to the north-east. Mr Faridy was of the opinion that (Ex 2, pars 1.6-1.7): "…Hastings Avenue (between Little Bay Road to the south and Macquarie Street to the north) has a distinguishable built character of free standing detached dwelling houses interspersed with a few dual occupancy developments facing the open space across Hastings Avenue. If we restrict this analysis to a section of Hastings Avenue between Macquarie Street to the north and Hall Street to the south there are a total of 15 properties and out of those 7 occupies some form of dual occupancy development representing 47% dual occupancies. Again only 2 of those are Torrens subdivided representing 13%."
2. Here, Mr Faridy was supporting Council's contention that approval of the proposal would result in development that is inconsistent with the predominant subdivision and development pattern in the locality (Ex 1, p 5).
3. I find the written request's arguments more persuasive. That is, that the subdivision would not alter the streetscape presentation of the existing development on Site. In any event it is clear that Hastings Avenue in the Site vicinity has some diversity of housing form mostly centred on detached dwellings and dual occupancy developments which seem to be able to exist in visual harmony.

Precedent

1. Council's contention was that allowing subdivision smaller than the minimum required lot size "would disrupt the existing subdivision pattern … setting an undesirable precedent" (Ex 1 p 15). I will consider this more fully below but note here that I am not concerned with the precedent argument in this instance based on Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101 (Goldin) at [28].

Consideration

1. Having considered the written request's submissions, in a sense in juxtaposition with the environmental planning concerns raised by Council, I am of the opinion that the written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard. The fact of the particularly small departure from the actual numerical standard and lack of any material impacts consequential of the departure are sufficient environmental planning grounds to justify contravening the development standard. The written request's drawing of an alignment between the lot sizes as proposed and the strategic intentions of Council as understood from particulars of Council's Local Strategic Planning Statement (LSPS) (Ex B, Tab 1), prepared in accordance with the requirements of s 3.9 of the EP&A Act, and Draft Housing Strategy (DHS) (Ex B, Tab 2), which suggest changes to minimum lot sizes under a future change to RLEP, is a further environmental planning ground justifying the contravention of the subdivision standard.
2. Together, the above findings mean the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of RLEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied in regard to the minimum lot size contravention.

Public interest

1. I now turn to the test at cl 4.6(4)(a)(ii) of RLEP, and whether the proposed development would be in the public interest because it is consistent with the objectives of the minimum subdivision lot size standard and the objectives for development within the R2 zone.
2. The term "consistent" has been considered in many judgments of the Court. Here, I am happy to rely on the summary prepared by Tuor C in Moskovich v Waverley Council [2016] NSWLEC 1015 at [53]: "…(the term consistency) has been interpreted to mean "compatible" or "capable of existing together in harmony" (Dem Gillespies v Warringah Council (2002) 124 LGERA 147; Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190) or "not being antipathetic" (Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21)."
3. I agree with and rely on the written request's demonstration that the proposed development is consistent with the objectives of the applicable minimum subdivision lot size standard.
4. The zone objectives are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. • To protect the amenity of residents. • To encourage housing affordability. • To enable small-scale business uses in existing commercial buildings.
5. The proposed subdivision would provide for an aspect of the housing needs of the community. When compared to the current setting, the proposal would provide for that group of the community which seeks tenure by way of subdivided land. The proposal is seen to be consistent with the first objective.
6. I have had regard to Council's contentions and expert evidence in relation to the third objective, above at [38]-[40].
7. The proposal would not change the streetscape or built form or affect the amenity of residents and is thus seen to be compatible with the third and fourth zone objectives.
8. I have had regard to Council's contentions and expert evidence in relation to the fifth objective, above at [32]-[34]. Consistent with these findings I find that the proposal is consistent with the fifth zone objective.
9. I note that the second and sixth objectives are not relevant.
10. On the basis of the above I find the development consistent with the R2 zone objectives.
11. Based on my conclusions above, the proposed development will be in the public interest because it is consistent with the objectives of the minimum subdivision lot size standard and the objectives for development within the R2 Low Density Residential zone. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of RLEP are met in regard to the minimum lot size contravention.

Conclusion - minimum subdivision lot size contravention

1. I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of RLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention and find nothing of significance arises in regard to these matters.
2. The states of satisfaction required by cl 4.6 of RLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the minimum lot size standard.

Other matters

1. I have already found that the proposal is consistent with the R2 zone objectives. I have also found that the proposal achieves the objectives of cl 4.1 of RLEP and that there are sufficient environmental planning grounds to justify contravening the minimum lot size standard. I do not believe the application should be refused because the proposed lot sizes are smaller than the minimum permitted under cl 4.1 of RLEP.
2. Council was concerned that the proposal would create an undesirable precedent. In Goldin, Lloyd J gave guidance in relation to the question of precedent, and where it may properly be taken into consideration. Justice Lloyd found, inter alia, as follows at [28]: "As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration."
3. The initial test under Goldin goes to whether the proposal is objectionable of itself (or as put by Sugerman J in Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177 "not unobjectionable"). In the case before me, I have not found anything substantively objectionable about the proposed subdivision. Therefore, I do not see that the proposal would set an undesirable precedent.
4. Council contends that the application should be refused because of the non-compliance with clause 2.1 of RDCP which relates to minimum lot sizes and frontage. The objectives of the clause are: "• To ensure land subdivision respects the predominant subdivision and development pattern of the locality. • To ensure land subdivision creates allotments that have adequate width and configuration, to deliver suitable building design and to maintain the amenity of the neighbouring properties."
5. The minimum frontage width for allotments resulting from the subdivision of land within Zone R2 for the purposes of dwelling houses and semidetached dwellings is 12m.
6. Under 4.15(3A)(b) of the EP&A Act, I must be flexible in applying this DCP provision and "allow reasonable alternative solutions that achieve the objects of (the standards)". Clearly the second objective is satisfied given the fact of the pre-existing dual occupancy building which is agreed by the experts to sit satisfactorily on the Site.
7. The first objective is seeking to ensure there is "respect" for the predominant subdivision pattern. It is clear to me from my inspection of the surrounds and the evidence of the experts that, given the mixed subdivision pattern in the locality comprising "standard" allotment sizes interspersed with more than occasional dual occupancy based subdivision of pre-existing standard lots (similar to that proposed here), this proposal would show due respect.

Conclusion and findings

1. I am satisfied that there is jurisdiction to approve the application and the proposal warrants approval on its merits.

Orders

1. The Court orders that: 1. The Applicant's request pursuant to clause 4.6 of Randwick Local Environmental Plan 2012 (in relation to the minimum lot size standard at clause 4.1 of the Randwick Local Environmental Plan 2012), prepared by Solutions Zane Land Use Planning Services, is upheld. 2. The appeal is upheld. 3. Development Application DA/28/2020 for Torrens Title subdivision of an approved dual occupancy at 3 Hastings Avenue Chifley, is approved subject to the conditions included at Annexure "A". 4. Exhibits 2, 3 and B are returned.

Amendments 15 March 2021 - Pursuant to UCPR r 36.17, the Court amends two typographical errors found in [39] and [50] of the judgment by replacing the words "height of buildings" with "minimum lot size". 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: 15 March 2021