Falamaki v Council of the City of Ryde

The need for amended plans

1. During the inspection of the existing building, it was noted that the room, which if the dual occupancy were approved, would be modified to become the kitchen of 153A, already had the features of the kitchen, in particular a cooktop was present. There was discussion on site between the Applicant and the Respondent as to what constituted a kitchen. On resumption in Court, the Respondent's position, based on the information gathered from the relevant officers, was that the room should not currently be a kitchen, and that the presence of the cooktop was sufficient to characterise the space as a kitchen.
2. If what was seen was a kitchen, the Respondent argued that a jurisdictional barrier to the Court granting approval arose.
3. The Court in an appeal stands in the shoes of Council and makes its own decision as to the appropriate outcome, based on the evidence before it. However, in reaching its decision, the Court has the same powers as would a council. If the room, in the form it was at the inspection, was a kitchen, and this was contrary to what was originally approved, a consent authority, be it Council or the Court, could not grant approval for what was proposed in the application before it - the proposal includes the conversion of the space to a kitchen. Absent the ability to grant approval in those circumstances, the matter could not proceed and the appeal must be refused.
4. There are avenues by which non-compliant works could be approved retrospectively, but they are not available in proceedings which have commenced seeking the approval of a new proposal predicated on the relevant space not already being a kitchen. The Applicant would need, if he sought an approval to retain the existing kitchen, to commence separate and different proceedings.
5. After discussions between the parties, it was agreed that one way to permit the matter to proceed to a determination of the core issues in contention would be for Mr Falamaki to seek to rely on amended plans. The matter was adjourned to permit amended plans to be prepared.
6. The following morning, 31 October 2018, Mr Falamaki filed a Notice of Motion with an annexure of amended plans. On resumption of the proceedings, the Notice of Motion was tendered as Exhibit C.
7. The Respondent did not oppose granting approval to rely on the amended plans. The amendments, although necessary to permit the matter to progress, were minor and did not require extra assessment so that the Respondent did not seek costs under s 8.15(3) of the Environmental Planning and Assessment Act 1979 (EPA Act). I granted approval for the Applicant to rely on the plans forming Annexure A to Exhibit C.
8. The new plans reverse the arrangement of the proposed kitchen in 153A by removing the cooktop on the western side of the room and locating a new cooktop on the east side. In addition, the plans provided for a front door to 153A which would match that of 153. This formalised what had been discussed on site.
9. Permitting the Applicant to rely on amended plans does nothing to resolve the major issues in contention between the parties. There being no prospect of the parties reaching an agreement on any of the outstanding issues, I terminated the conciliation pursuant to s 34AA(2)(b)(i) of the Court Act and the proceedings continued as a contested hearing. The parties agreed that evidence given, and observations made, during the conciliation could form part of my considerations.
10. At this point it is appropriate to make clear what these proceedings are not about. The Respondent's SOFAC, the City of Ryde's Planning Panel's determination to refuse the development application, as summarised in Exhibit 1 at par [27(8)], the Respondent's planning expert's contribution to the Joint Expert Report (Exhibit 3) and the submissions of the objectors all contain statements implying that the building on the site, which is to be modified if the proposal is approved, was designed and constructed so as to facilitate conversion to dual occupancy, and that the proposal was to enable legitimisation of a building which had been constructed to circumvent planning controls. The Applicant strongly resists these claims. For the present matter, the history is not relevant; the Court's task is to conduct a merits assessment of the proposal represented in final form by the plans in Annexure A to Exhibit C. If there are issues regarding compliance of the existing structures, then there are avenues available to Council to pursue them if it so wishes.

The planning regime

1. The applicable local environmental plan is the Ryde Local Environmental Plan 2014 (RLEP). The aims of the RLEP are: 1.2 Aims of Plan (1) This Plan aims to make local environmental planning provisions for land in Ryde in accordance with the relevant standard environmental planning instrument under section 33A of the Act. (2) The particular aims of this Plan are as follows: (a) to encourage a range of development, including housing, employment and recreation, that will accommodate the needs of the existing and future residents of Ryde, (b) to provide opportunities for a range of housing types that are consistent with adjoining development and the existing environmental character of the locality, (c) to foster the environmental, economic, social and physical development of Ryde so that it develops as an integrated, balanced and sustainable city, (d) to identify, conserve and promote Ryde's natural and cultural heritage as the framework for its identity, prosperity, liveability and social development, (e) to improve access to the city, minimise vehicle kilometres travelled, facilitate the maximum use of public transport and encourage walking and cycling, (f) to protect and enhance the natural environment, including areas of remnant bushland in Ryde, by incorporating principles of ecologically sustainable development into land use controls, (g) to preserve and improve the existing character, amenity and environmental quality of the land to which this Plan applies, (h) in relation to economic activities, to provide a hierarchy of retail, commercial and industrial activities that enable employment capacity targets to be met, provide employment diversity and are compatible with local amenity.
2. These objectives are broad, but of particular relevance to the current matter are subs 1.2(b) and (g).
3. Under the RLEP, the site is within the Zone R2 Low Density Residential. The Land Use Table for the zone is: Zone R2 Low Density Residential 1 Objectives of zone • 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 provide for a variety of housing types. 2 Permitted without consent Home occupations 3 Permitted with consent Bed and breakfast accommodation; Boarding houses; Business identification signs; Centre-based child care facilities; Community facilities; Dual occupancies (attached); Dwelling houses; Environmental protection works; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Hospitals; Multi dwelling housing; Places of public worship; Recreation areas; Residential care facilities; Respite day care centres; Roads; Secondary dwellings 4 Prohibited Any development not specified in item 2 or 3
4. Dual occupancies (attached) are permitted with consent.
5. The development application has been made under the provisions of SEPP (ARH). The aims of the policy are: 3 Aims of Policy The aims of this Policy are as follows: (a) to provide a consistent planning regime for the provision of affordable rental housing, (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, (c) to facilitate the retention and mitigate the loss of existing affordable rental housing, (d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, (e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing, (f) to support local business centres by providing affordable rental housing for workers close to places of work, (g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.
6. Clause 8 of SEPP (ARH) provides that: 8 Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
7. The application is for in-fill affordable housing under Part 2 Division 1 of SEPP (ARH). Clause 10 states: 10 Development to which Division applies (1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if: (a) the development concerned is permitted with consent under another environmental planning instrument, and (b) the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977. (2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area. (3) Despite subclause (1), this Division does not apply to development on land that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use, or within a land use zone that is equivalent to any of those zones.
8. As dual occupancy (attached) is permitted with consent in the R2 zone, cl 10(1)(a) of SEPP (ARH) is satisfied. The land does not contain a heritage item (cl 10(1)(b)).
9. Under cl 10.1(2), the land must be within an "accessible area". Accessible area is defined in cl 4 of SEPP(ARH): 4 Interpretation-general (1) In this Policy: accessible area means land that is within: (a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or (b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday
10. Coxs Road has regular bus services, and there is a bus stop almost directly in front of the property, so that clause 10(2) is satisfied.
11. SEPP (ARH) provides for bonus increases in allowable FSR in cl 13: 13 Floor space ratios (1) This clause applies to development to which this Division applies if the percentage of the gross floor area of the development that is to be used for the purposes of affordable housing is at least 20 per cent. (2) The maximum floor space ratio for the development to which this clause applies is the existing maximum floor space ratio for any form of residential accommodation permitted on the land on which the development is to occur, plus: (a) if the existing maximum floor space ratio is 2.5:1 or less: (i) 0.5:1-if the percentage of the gross floor area of the development that is used for affordable housing is 50 per cent or higher, or (ii) Y:1-if the percentage of the gross floor area of the development that is used for affordable housing is less than 50 per cent, where: AH is the percentage of the gross floor area of the development that is used for affordable housing. Y = AH ÷ 100 or (b) if the existing maximum floor space ratio is greater than 2.5:1: (i) 20 per cent of the existing maximum floor space ratio-if the percentage of the gross floor area of the development that is used for affordable housing is 50 per cent or higher, or (ii) Z per cent of the existing maximum floor space ratio-if the percentage of the gross floor area of the development that is used for affordable housing is less than 50 per cent, where: AH is the percentage of the gross floor area of the development that is used for affordable housing. Z = AH ÷ 2.5 (3) In this clause, gross floor area does not include any car parking (including any area used for car parking). Note. Other areas are also excluded from the gross floor area, see the definition of gross floor area contained in the standard instrument under the Standard Instrument (Local Environmental Plans) Order 2006.
12. RLEP cl 4.4 establishes the FSR applicable to the site: 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to provide effective control over the bulk of future development, (b) to allow appropriate levels of development for specific areas, (c) in relation to land identified as a Centre on the Centres Map-to consolidate development and encourage sustainable development patterns around key public transport infrastructure. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
13. The FSR map covering the subject site is reproduced in Exhibit 1 (behind tab A at p39), and shows that the maximum FSR under RLEP is 0.50. While there is minor disagreement between the planning experts as to the calculation of FSR for the proposal, even if the higher of the two figures advanced is assumed to be correct, it is less than the maximum which would be allowable under cl 13 of SEPP (ARH).
14. SEPP (ARH) provides restrictions (in cl 14) on the grounds under which a consent authority might otherwise, under the provisions of RLEP, refuse consent: 14 Standards that cannot be used to refuse consent (1) Site and solar access requirements A consent authority must not refuse consent to development to which this Division applies on any of the following grounds: (a) (Repealed) (b) site area if the site area on which it is proposed to carry out the development is at least 450 square metres, …
15. Clause 15 of SEPP (ARH) provides that: 15 Design requirements (1) A consent authority must not consent to development to which this Division applies unless it has taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that those provisions are consistent with this Policy. (2) This clause does not apply to development to which clause 4 of State Environmental Planning Policy No 65-Design Quality of Residential Apartment Development applies.
16. Clause 15(1) requires that the consent authority has taken into consideration the relevant provisions. It does not require satisfaction of a particular standard such that would require refusal if that standard were not met, rather the weight to be given to the guidelines forms part of the consent authority's merit consideration.
17. Clause 16A requires consideration of the character of the local area: 16A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
18. It is necessary that if approval is granted 153A must be used for affordable housing for 10 years 17 Must be used for affordable housing for 10 years (1) A consent authority must not consent to development to which this Division applies unless conditions are imposed by the consent authority to the effect that: (a) for 10 years from the date of the issue of the occupation certificate: (i) the dwellings proposed to be used for the purposes of affordable housing will be used for the purposes of affordable housing, and (ii) all accommodation that is used for affordable housing will be managed by a registered community housing provider, and (b) a restriction will be registered, before the date of the issue of the occupation certificate, against the title of the property on which development is to be carried out, in accordance with section 88E of the Conveyancing Act 1919, that will ensure that the requirements of paragraph (a) are met.
19. Annexure B to the Applicant's Statement of Facts and Contentions in Reply (Exhibit B) is a letter dated 18 September 2018 from Mr Kerans, Area Manager of Ecclesia Housing, a registered community housing provider, stating that the organisation has agreed to manage 153A Coxs Road as affordable rental housing for 10 years under the requirements of cl 6 of SEPP (ARH), thus satisfying cl 17(1)(a)(ii) of SEPP (ARH).

Torrens or Strata title?

1. The Development Application Form (DA) included within the application for these Class 1 proceedings (Exhibit A) includes as the handwritten entry for 6.a) "6.a) Detailed description of development In-fill Affordable Housing - Dual Occupancy pursuant to ARHSEPP 2009 and Strata Subdivision."
2. However, in the SOFAC (Exhibit 1), and subsequently, it has been stated that the application is for Torrens title subdivision.
3. Subdivision is governed by cl 4.1 of RLEP: 4.1 Minimum subdivision lot size (1) The objectives of this clause are as follows: (a) to retain streetscape, amenity, landscaped areas and private open space in residential zones, (b) to ensure that lot sizes enable sufficient areas of open space within each lot so as to enable the retention and embellishment of green linkage corridors in residential zones. (2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan. (3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.
4. Under RLEP, Torrens title subdivision is governed by cl 4.1A: 4.1A Dual occupancy (attached) subdivisions (1) Despite clause 4.1, development consent may be granted for the Torrens title subdivision of a lot if: (a) before the day Ryde Local Environmental Plan 2014 (Amendment No 2) commences a dual occupancy (attached) has been constructed on the lot or an occupation certificate has been issued for that development, and: (i) the lot to be subdivided has an area of at least 580 square metres, and (ii) one dwelling will be situated on each lot resulting from the subdivision, and (iii) each resulting lot will have an area of not less than 290 square metres, or (b) on or after the day Ryde Local Environmental Plan 2014 (Amendment No 2) commences a dual occupancy (attached) has been constructed on the lot, and: (i) the lot has an area of at least 580 square metres and a road frontage of at least 20 metres, and (ii) one dwelling will be situated on each lot that has an area of not less than 290 square metres and a road frontage of not less than 10 metres, and (iii) an occupation certificate has been issued for that development. (2) Development consent may only be granted to the strata subdivision of a dual occupancy (attached) on land in Zone R2 Low Density Residential if the land has an area of at least 580 square metres.
5. This clause does not apply to strata subdivision. However, despite cl 4.1, development consent may be granted for Torrens title subdivision if cl 4.1A is satisfied.
6. The property has a site area of 531m² on a road frontage of 15.24m, thus not satisfying either the requirements for Torrens title or (cl 14A(2) Strata subdivision).
7. Clause 4.6 of RLEP provides a pathway by which exceptions to development standards can be sought. However, cl 4.6(8) provides that: (8) This clause does not allow development consent to be granted for development that would contravene any of the following: (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, … (cb) clause 4.1A, to the extent that it applies to the Torrens title subdivision of a dual occupancy (attached), …
8. Thus, cl 4.6 cannot be used to amend the application of cl 4.1A.
9. Clause 14(1) of SEPP (ARH) lists the types of development standards which a consent authority cannot used to refuse a development application. The development standards listed do not include any reference to restrictions on Torrens title subdivision; SEPP (ARH) does not provide an avenue to permit Torrens title subdivision in circumstances where it would be impermissible under the RLEP.
10. The Planning Experts in their joint report (Exhibit 3) agreed (Exhibit 3, page 8 at par [15]) that if Torrens title subdivision is proposed, then the application must be refused. I agree with this conclusion.
11. The Applicant in his written submissions (Exhibit D) argued at pars [8] - [9] that SEPP (ARH) should prevail and Torrens title subdivision be permitted. However, if the Court found Torrens title was not permitted "the development application is amended to be subdivided under strata."
12. Given the position of the planning experts, the matter continued as a proposal for strata subdivision.

The contentions

1. As a result of the agreements between the planning experts, only three contentions remain, the others either being resolved or no longer applicable, or were capable of being addressed by conditions of consent. The contentions which remained are:

• Contention 3 - lot size, and specifically whether compliance with the minimum road frontage is required;
• Contention 9 - streetscape and character;
• Contention 10 - the public interest;

Contention 3 - minimum road frontage.

1. Clause 4.1B(2)(b) of RLEP requires the road frontage of a lot to be equal to or greater than 20m. It is agreed that the road frontage of the subject lot is 15.24m. The clause also requires a minimum lot size of 580m², whereas the lot in question is 531m². 4.1B Minimum lot sizes for dual occupancies and multi dwelling housing (1) The objective of this clause is to achieve planned residential density in certain zones. (2) Development consent may be granted for development on a lot in Zone R2 Low Density Residential for a purpose shown in Column 1 of the table to this clause if: (a) the area of the lot is equal to or greater than the area specified for that purpose and shown opposite in Column 2 of the table, and (b) the road frontage of the lot is equal to or greater than 20 metres. Column 1 Column 2 Dual occupancy (attached) 580 square metres Multi dwelling housing 900 square metres

1. The Applicant in written submissions (Exhibit D), argues that the question of non-compliance with cl 4.1B(2)(b) can be addressed in two ways: 1. a finding that cl 4.1B(2)(b) is inconsistent with cl 14(1)(b) of the SEPP (ARH) and its relevant aims when construed as a whole, or 2. acceptance of the cl 4.6 statement submitted in the variation request in Annexure B to the Joint Expert Report (Exhibit 3) to vary the requirement under cl 4.1B that the minimum lot frontages be at least 20m.

Is RLEP inconsistent with SEPP (ARH)?

1. The argument advanced by the Applicant that SEPP (ARH) prevails (and see also the case presented by Mr Wood in the Joint Expert Report (Exhibit 3 at pars [55] - [56]) could be summed up as 'It stands to reason'.
2. The parties agree that SEPP (ARH) sets the minimal site area for dual occupancy at 450m², 22.4% smaller than the 580m2 required by RLEP. Clause 14 of SEPP (ARH) specifies that provided the site area is at least 450m², non-compliance with a development standard specifying a larger site area in an LEP cannot be used as the basis for refusing consent.
3. The parties' experts agreed that cl 14 of SEPP (ARH) makes no mention of any linear dimensions. For a rectangular lot, which is the case in the present matter, the site area is the product of length and breadth, so width is inevitably a factor in determining area.
4. If SEPP (ARH) provides for dual occupancy (attached) development in lots with an area of 450m², Mr Wood in Exhibit 3 at par [55] considers that: "Consequently it is also logical that a smaller lot size should also mean that the ARHSEPP contemplates that development could occur on an allotment that is narrower than that envisaged by the Ryde LEP 2014. As set out in the Clause 4.6 strict application of a 20 m frontage relative to a 450 m² creates an allotment of 20 m x 22.5 m - a depth that would severely compromise a dual occupancy development."
5. Mr Wood continues in par [56]: "On the basis of the above I consider that the proportional reduction in lot size permitted by the SEPP should also be applied to the frontage control from a merits point of view. Reduction in lot size is 22.4% and the frontage departure of 23.8% which is comparable to the proportional reduction in lot size."
6. In Amine, Mouhamad and Anor v Bankstown Council [2014] NSWLEC 1188 (Amine) Commissioner O'Neill considered a proposal under SEPP (ARH) for construction of three villas on a site where the developments standards in the Bankstown Local Environmental Plan 2001 (BLEP) required a minimum site area of 1200m² and an allotment frontage of 20m.
7. The width of the lot in Amine is not stated in the judgment but can be presumed to be less than 20m given that at [39] it is indicated "that the requirement for a 20m frontage for a villa development in LEP 2001 acts as a constraint to the granting of development consent."
8. The Commissioner found at [43] that the development standards in cl 4.6 of BLEP 2001 for minimum site area, allotment width, and minimum area per individual villa were all inconsistent with cl 14(b) of SEPP (ARH). Under SEPP (ARH), the minimum area required is 450m² and "The development standards for villas in LEP 2001 cannot be used to refuse consent, at clause 14 of SEPP (ARH), as the site area is 923sqm."
9. In [44] the Commissioner continued: "……the incentives of the SEPP (ARH) provisions, designed to encourage the supply of affordable rental housing, permit this development to occur on a smaller site that would otherwise be required for a villa development under LEP 2001. For this reason and pursuant to cl 14 of SEPP (ARH), the development standards for villas in cl 46 cannot be used to refuse consent and therefore a SEPP 1 objection is not required."
10. BLEP 2001 did not contain cl 4.6, so that the avenue for seeking variation in application of development standards was by way of State Environmental Planning Policy No 1- Development Standards (SEPP 1).
11. The discussion in Amine at [44] does not include specific mention of the width of frontage, but does refer to the development standards for villas in cl 46 of LEP 2001 (which include site width).
12. The Applicant in his written submissions (Exhibit D) interpreted the discussion in Amine in the following terms (at pars [36] - [37]): "36. The Court found that the LEP controls relating to site area and site frontage were to be read together and were both considered to be inconsistent with Cl. 14(b) of the SEPP ARH. This is the exact circumstance in the matter in hand; it does not matter that the SEPP ARH is silent on the frontage requirement given the objective of the SEPP is to provide affordable rental housing and its identification of suitable sites relates only to site area. 37. To impose the RLEP 2014 instead of SEPP ARH would contravene Cl. 8 of SEPP ARH and promote inconsistency, not harmony."
13. Notwithstanding that in Amine the Commissioner found that the requirements of the LEP were inconsistent with SEPP (ARH) and that SEPP (ARH) prevailed, ultimately she dismissed the appeal on grounds of lack of compatibility with the character of the local area.
14. More recently, Commissioner Gray considered similar issues in Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 (Louden). In this matter, Louden Pty Ltd sought to demolish an existing dwelling house and erect a four-storey residential flat building within the R4 High Density Residential zone in Bankstown Local Environmental Plan 2015 (BLEP 2015). The application was made pursuant to the provisions of SEPP (ARH).
15. One of the contentions in the matter was that the width of the subject site at the front building line did not comply with the development standard for minimum width in cl 4.1B(2)(b) of BLEP 2015.
16. Under BLEP 2015, for residential flat buildings in the zone R4, the required lot area is 1500m² and the minimum width of the lot at the front building line is 30 m. In SEPP (ARH), the minimum requirement for lot size is 450m² and the inconsistency between the LEP and SEPP (ARH) is to be resolved by SEPP (ARH) prevailing.
17. In Louden at [20]: "Louden also submits that there is an incongruity between the provisions of cl 14(1)(b) of the SEPP ARH regarding the lot size and the minimum width of the lot in cl 4.1B(2)(b) of the BLEP 2015 insofar as those clauses apply to a residential flat building in the R4 zone, and that this incongruity creates an inconsistency that causes the SEPP ARH to prevail and cl 4.1B(2)(b) to have no effect. The question of whether such an inconsistency exists is considered in my reasons below."
18. Despite its view that the width restriction created an inconsistency between the two planning instruments, Louden submitted a cl 4.6 request.
19. In Louden at [32], the proponent submitted that: "… Louden submits that inconsistency in the standard for lot size between the SEPP ARH and the BLEP 2015 creates an inconsistency between the SEPP ARH and the BLEP 2015 with respect to the minimum width. Secondly, Louden submits that to maintain the 30m standard with respect to lot width for a residential flat building only requiring a minimum lot size of 450m2 is so onerous that it is inconsistent. In support of this submission, Louden relies on the evidence of Mr Wood that a site of 15m depth would not be sufficient for a residential flat building, and the evidence of both town planners that they are not aware of any sites in the Bankstown area of 30m width and 15m depth. Louden refers to decision of the Court of Appeal in Coffs Harbour Environment Centre Inc v Minister for Planning (1994) LGERA 324, in which Kirby P found that "there will be an inconsistency if, in the provisions of one environmental planning instrument, there is "want of consistency or congruity"; "lack of accordance or harmony" or "incompatibility, contrariety, or opposition" with another environmental planning instrument." This test was confirmed in Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164, in which the majority of the Court of Appeal applied this test and determined that a provision regarding a building height plane was inconsistent with a provision regarding building height and massing. Louden submits that a "lack of accordance or harmony" occurs with the present provisions as they apply to residential flat buildings, and that they are therefore inconsistent."
20. Commissioner Gray concluded in relation to the issue at [34] - [35]: "The provisions are not inconsistent 34 I accept that with a lot size of close to 450m2, achieving a frontage of 30m for a residential flat building is unlikely and/or onerous. To expect to achieve such a frontage might be unreasonable in light of the "do not refuse" provision preventing refusal of the development based on lot size if the lot size is 450m2. However, I do not accept that because a standard that is unlikely to be achieved, or onerous to achieve, if cl 14(1)(b) is met, it falls within the ordinary meaning of creating an "inconsistency". In that sense, the present provisions can be distinguished from those in Castle Constructions v North Sydney Council, in which their Honours were concerned with the inconsistency of two different provisions concerning the applicable height control. Whilst inherent incongruity in two different applicable provisions relating to the same control (e.g. height) may create an inconsistency, in my view incongruity due to a difficulty in achieving two different standards does not. 35 Further, whilst they are proportionally related, a standard with respect to the minimum width at the front building line is different to a standard with respect to lot size. In this respect, I accept the submission of the Council that cl 14(1)(b) of the SEPP ARH and cl 4.1B(2)(b) are capable of being reconciled, albeit it may be difficult to do so in the context of a residential flat building. For those reasons, and because cl 4.6 of the BLEP 2015 applies to allow consent to be granted notwithstanding a breach of cl 4.1B(2)(b), I do not accept that an inconsistency arises that causes cl 14(1)(b) of the SEPP ARH to prevail over cl 4.1B(2)(b). Had cl 4.6 not applied to cl 4.1B(2)(b), I may have reached a different view. Therefore, the development standard for the minimum width at the front building line of 30 metres applies to the application, but cl 4.6 allows consent to be granted notwithstanding non-compliance with this standard."
21. The Commissioner went on to grant the cl 4.6 request, and after considering the other contentions in the matter, upheld the appeal.
22. Faced with contradictory opinions as to whether the site area requirement in SEPP (ARH) implicitly includes lot width, or whether area and width are to be considered separately, which one is to be preferred?
23. In construing environmental planning instruments, it should be assumed that the draftsperson chose to use particular words for a reason and that the words used have work to do. The converse is that the absence of particular words also signifies intent, and there is not a licence to imply the inclusion of 'missing words' however logical or convenient their inclusion might seem. If the draftsperson of SEPP (ARH) had intended that lot width as well as site area be development standards which could not, under SEPP (ARH) be used to refuse consent, reference to lot width could have been included. Support for this view can be found in State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 which includes in cl 25 (the relevant equivalent to cl 14 of SEPP (ARH)) in cl 25(2)(c) - the development may be located on a site of any size, have any length of street frontage or any allotment depth.
24. The Department of Planning & Environment in August 2014 issued a fact sheet 'Supporting infill affordable rental housing' which includes a number of Frequently Asked Questions. The first of these is - "Q. Do other local council planning controls continue to apply? A. if the SEPP does not explicitly override a local council planning control then the local council planning control continues to apply."
25. The fact sheet is an advisory document and does not constitute a binding authoritative statement, but it is referred to, in particular, (e.) to Contention 3 (Exhibit 1). I note that Mr Wood, in the Joint Expert Report (Exhibit 3) at par [54] gives little weight to the fact sheet, but it is a document intended to inform the public about the interaction between SEPP (ARH) and LEPs, and is consistent with the wording of cl 14(1) of SEPP (ARH).
26. I am, therefore, strengthened in my view that cl 14(1) of SEPP (ARH) does not implicitly include lot width amongst the standards on which a consent authority can refuse consent and that the interpretation provided by Commissioner Gray in Louden is correct. Clause 4.1B of RLEP is not inconsistent with cl 14.1 of SEPP (ARH) and thus the lot width requirement in cl 4.1B is a mandatory development standard applicable to the proposal.
27. However, cl 4.6 in RLEP permits the applicant to make a case for variation in the application of cl 4.1B which, if successful, would allow consent to be granted despite the non-compliance with the lot width standard.
28. Mr Wood, the Applicant's planning expert, makes a written clause 4.6 variation request which is included as Annexure B to the Joint Expert Report (Exhibit 3).

The clause 4.6 variation request

1. Clause 4.6 in RLEP is in standard form and provides that: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (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 Secretary has been obtained. (5) In deciding whether to grant concurrence, the 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 Secretary before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if: (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. Note. When this Plan was made it did not include all of these zones. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following: (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4, (ca) clause 4.3, to the extent that it applies to the land identified as "Town Core" on the Ryde Town Centre Precincts Map, (cb) clause 4.1A, to the extent that it applies to the Torrens title subdivision of a dual occupancy (attached), (cc) clause 6.9.
2. A consent authority may grant consent for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument (cl 4.6(2)). Development consent must not be granted until matters in cl 4.6(3) and cl 4.6(4) are addressed.
3. Clause 4.6(4)(b) requires that the concurrence of the Secretary has been obtained. Secretary is a reference to the Secretary of the Department of Planning and Environment. On February 2018, by an Assumed Concurrence Notice issued pursuant to cl 64 of the Environmental Planning and Assessment Regulation 2000 attached to Planning Circular PS 18-003 was issued by the Secretary. The notice provides that: "All consent authorities may assume my concurrence, subject to the conditions set out in the table below, where it is required under: • clause 4.6 of a local environmental plan that adopts the Standard Instrument (Local Environmental Plan) Order 2006 or any other provision of an environmental planning instrument to the same effect …"
4. The conditions in the table do not, in the circumstances of the case, affect the concurrence granted by the Secretary.
5. The concurrence granted by the Secretary applies to all consent authorities, but the Court when standing in the shoes of Council has the power to grant consent if satisfied of the matter in cl 4.6(4)(a) without assuming the concurrence of the Secretary because of the powers granted to it by s 39(6) of the Court Act (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action).
6. The approach to be taken by a consent authority (including the Court on appeal) in determining a cl 4.6 request has recently been explained in Initial Action by Preston CJ.
7. Moore J in Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2018] NSWLEC 191 (Rebel) considered that: "42 The determination of the request pursuant to cl 4.6 of the LEP and the reaching of the conclusion that the request should be sustained is jurisdictional. It is the written request that requires to be assessed and the written request is not modified by any oral evidence given which might seek to explain it. Even if this is not correct, the oral evidence concerning matters of entitlement, although not analysed in detail, did not resile from the matters later dealt with in the terms set out in the request itself (Exhibit J). 43 Without the reaching of the necessary elements of satisfaction mandated by each of the tests in cl 4.6(4)(a) and (b), there is no jurisdiction to undertake a general merit assessment of the overall development proposal pursuant to s 4.15 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). If any of the multiple jurisdictional gates mandated to be opened by the provision remain closed (because the cl 4.6 request has not established a proper basis for each of them to be open), the proposed development must be rejected."
8. In order for me to grant consent for the proposal, cl 4.6(4)(a) requires that I am satisfied that, as explained by Moore J in Rebel at [46]: "(1)The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of this proposed development (cl 4.6(3)(a) and cl 4.6(4)(a)(i)); and (2)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)); and (3)The proposed development will be in the public interest because it is consistent with the objectives of the standard in question - set out in cl 4.3 of the LEP (cl 4.6(4)(a)(ii)); and (4)The proposed development will be in the public interest because it is consistent with the objectives of the [R2 Low] Density Residential Zone (cl 4.6(4)(a)(ii))…" (amended to include the relevant clause and zone of the present matter)
9. The environmental planning grounds relied upon in the cl 4.6 written request must justify the contravention of the development standard for lot width. The focus of the enquiry is the standard, not the proposed development as a whole, so the environmental planning grounds identified in the cl 4.6 request must provide justification for contravening the development standard and not provide a platform for discussing the benefits of carrying out development as a whole (Initial Action at [24]).
10. The power to grant consent to a development which would contravene a development standard (cl 4.6(2)) is subject to conditions. The first is that the consent authority must be satisfied that the conditions in cl 4.6(4)(a) and (b) are met: (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.
11. Clause 4.6(4)(a)(i) requires that the two matters mentioned in cl 4.6(3) have been adequately addressed. (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.
12. Ways in which an applicant might demonstrate the compliance with a development standard is unreasonable or unnecessary were discussed in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) at [42] - [51]. This discussion was in relation to SEPP 1 (as the case was prior to the introduction of the standard form cl 4.6) but is equally applicable to a request under cl 4.6 (Initial Action at [16]).
13. The ways discussed in Wehbe can be summarised as: "• The objectives of the development standard are achieved notwithstanding non-compliance with the standard; • The underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; • Underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; • The development standard has been abandoned by the council; or • 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)." (Talebi v Mosman Council [2018] NSWLEC 1671 at [10])
14. The list is not exhaustive but does include the most commonly invoked ways (Initial Action at [22]).
15. Clause 4.6(3)(b) requires that the grounds relied upon in a written request must be environmental planning grounds, but this term is not defined but it "would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act"(Initial Action at [23]).

The written request prepared by Mr Wood

1. The request addresses the minimum frontage development standard in cl 4.1B in RLEP: 4.1B Minimum lot sizes for dual occupancies and multi dwelling housing (1) The objective of this clause is to achieve planned residential density in certain zones. (2) Development consent may be granted for development on a lot in Zone R2 Low Density Residential for a purpose shown in Column 1 of the table to this clause if: (a) the area of the lot is equal to or greater than the area specified for that purpose and shown opposite in Column 2 of the table, and (b) the road frontage of the lot is equal to or greater than 20 metres. Column 1 Column 2 Dual occupancy (attached) 580 square metres Multi dwelling housing 900 square metres

1. The minimum lot size of 580m² does not apply by reason of SEPP (ARH) cl 14.1, which specifies a minimum lot size of 450m².
2. "Therefore, consideration must be given to the fact that clause 4.1B is designed to operate in a way that frontage and site area controls are interrelated" (Clause 4.6 variation request, page 2).
3. I have already determined that the approach of Commissioner Gray in Louden is correct in that although the lot width and area controls in clause 4.1B create an incongruity in the context of SEPP (ARH), they do not constitute an inconsistency, so the lot width control continues to apply separately from site area.
4. Mr Wood referred to several recent cases including Initial Action and concludes: "• The consent authority be satisfied the proposed development will be in the public interest because it is "consistent with" the objectives of the development standard and zone is not a requirement to "achieve" those objectives. It is a requirement that the development be compatible with the objectives, rather than having to 'achieve' the objectives. • Establishing that 'compliance with the standard is unreasonable or unnecessary in the circumstances of the case' does not always require the applicant to show that the relevant objectives of the standard are achieved by the proposal (Wehbe "test" 1). Other methods are available as per the previous 5 tests applying to SEPP 1, set out in Wehbe v Pittwater. • The proposal is required to be in 'the public interest'. In relation to the current proposal the keys are: ‒ Demonstrating that either: ○The underlying objective or purpose of the standard is not relevant to the proposal; or ○The development remains consistent with the objectives of the minimum lot size and frontage standard; ‒ Demonstrating consistency with the R2 zoning; ‒ Demonstrating there are sufficient environmental planning grounds to vary the standard; and ‒ Satisfying the relevant provisions of Clause 4.6."
5. Mr Wood addresses the provisions of cl 4.6(3) and (4) in turn.
6. Mr Wood seeks to justify that the compliance is unreasonable and unnecessary (cl 4.6 (3)(a)) by reference to the first two approaches provided in Wehbe (although Approach 1 in Mr Wood's analysis is Wehbe point 2 and Approach 2 is Wehbe point 1).
7. Approach 1 of Mr Wood gives considerable weight to the aims of SEPP (ARH), and states that: "if a dual occupancy can occur on a reduced site area under the SEPP then it must follow that it can occur on a reduced allotment width in a proportional way. In this instance SEPP enables a dual occupancy to occur in allotment that is 22.4% less than the planned lot area in the LEP, and the departure to the allotment with in the proposed development is 23.8% which is comparable".
8. I have already determined that SEPP (ARH) does not provide for a reduced allotment width standard. Clause 4.6 allows an applicant to seek a variation of the lot width standard, but that does not mean a lot width reduction comparable to the reduction in lot area will automatically be considered reasonable.
9. There is no consideration of the absolute numerical reduction in width of the two components of a dual occupancy that would result if the proposal were approved. The lot is 15.24m wide so that division into two equally sized areas would give each a width of 7.62m. When the side setbacks are considered the built component of each residence would be narrow.
10. There are forms of residential development across Sydney where residences are narrow (for example inner-city terraces). However, the argument advanced by Mr Wood does not raise or discuss whether, in the context of the R2 zone in the City of Ryde compliance with the lot width standard is unreasonable or unnecessary or that there are sufficient environmental planning grounds to justify contravention of the standard. That non-compliance would promote the aims of SEPP (ARH) by contravening a standard which is not explicitly referred to in SEPP (ARH), but is a standard in RLEP, is not of itself a sufficient reason not to apply the standard.
11. Mr Wood's second approach is to argue that compliance is unreasonable or unnecessary as the underlying intent of the control is satisfied. (Clause 4.6 variation request pp 6-8, in Exhibit 3).
12. Clause 4.1B has only a single objective: (1) The objective of this clause is to achieve planned residential density in certain zones.
13. The site is within the R2 Low Density Residential zone. (Density in this context relates to the density of elements of built form and not to population density.) Mr Wood considers that the single objective for the standard as written does not capture its intent. "The single stated objective is not considered to fully capture the 'underling objective' of the site area and frontage control as it considered that in addition to the achievement of 'planned residential density' a minimum lot size and frontage control is in place to: ‒ Ensure an allotment is of sufficient size and area to accommodate a dual occupancy; ‒ To minimise likely impacts of development on the amenity of the area; ‒ To ensure that a low density character is maintained. The current proposal remains consistent with the objectives based on the following: • The proposal has been designed to comply with key provisions relating to: - Private open space; - Landscaped area and deep soil; - Parking and access; and - Setbacks and separation. This demonstrates the site area and allotment width is sufficient to accommodate a dual occupancy made under the provisions of SEPP (Affordable Rental Housing) 2009."
14. Mr Wood's first subobjective (see [123]) is to 'ensure an allotment is of sufficient site and area to accommodate a dual occupancy' should not be read as implying that all lots within the R2 zone will be capable of supporting a dual occupancy under SEPP(ARH), even though dual occupancy is permitted with consent in the zone. The focus of the cl 4.6 request should be on the development standard in cl 4.1B, and justify why variation should be allowed. That a dual occupancy that is allowable under SEPP (ARH) could be provided on the site, is, in the context of the cl 4.6 variation request not the point. The important focus should be on planned residential density, for which the second two of Mr Wood's expansionary points should be given attention. "‒ To minimise likely impacts of development on the amenity of the area; ‒ To ensure that a low density character is maintained"
15. Amenity of the area is not defined and it is not clear how extensive an area is to be considered. At the most local scale it would be the visual catchment, bounded in red in Figure 7 in the SOFAC (Exhibit 1):
16. At its most extensive, it could be the whole of North Ryde. While variation between different local areas is part of the character of the larger area it is a smaller scale that is most relevant in considering the proposal. The amenity of the local area includes the visual aspects of the pattern of the historic narrow lot subdivision and the scale and nature of the dwellings constructed on the lots. These features contribute to the sense of place of the local area. Amenity would also include the regular bus services and the local childcare centre.
17. There is a strong overlap between amenity and the local character - the subject of Mr Wood's third subobjective of the standard.
18. Considerable weight is given in both RLEP and SEPP (ARH) to consideration of local character in the objectives of the R2 zone and in cl 16A of SEPP (ARH), and at a higher level still in the aims of the RLEP as a whole. The aim in cl 1.2(g) also encompasses the importance of maintaining the character of the local area.
19. The Applicant's approach to arguing that the local character is maintained is largely based on the approval of the existing building (an approval which must have considered any impacts on local character) and the fact that the external dimensions of the building will remain unchanged when it becomes a dual occupancy. However, in my view this approach does not take into account the change in the appearance of the front of the building such that it will be viewed as including two separate residences. The change of one building within a local area where most of the blocks contain a single residence is likely to be seen as an exception to the general character of the local area. A greater depth of analysis is required to determine whether the change has a significant impact and thus whether the local character is maintained. The information provided in the cl 4.6 variation request is not sufficient to provide confirmation that there is no inappropriate change.
20. In regard to Approach 2, Mr Wood repeats his statements about the incongruity of applying a lot with standard when SEPP (ARH) allows for a smaller site area as were made in his discussion of Approach 1.
21. In regard to cl 4.6(4)(a)(ii), Mr Wood argues that the proposal is consistent with the objectives of the R2 zone in the sense that it is not antipathetic to them: R2 zone objectives 1 Objectives of zone • 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 provide for a variety of housing types.
22. He argues that the proposal is consistent with the objectives in that the proposal makes: "‒ Provision of a dual occupancy of 2 storeys in a building that is already located on the site such that the character of the locality is unchanged; ‒ Provision of a total of 2 dwellings that expands housing choice and contributes to a variety of housing types. In addition, a total of 1 dwelling is identified for use as affordable rental housing for a period of 10 years. Therefore, the development is consistent with the zone objectives."
23. In regard to the first of the points, the building already exists; the external dimensions of the building will remain unchanged. However, is the character of the locality unchanged? The character of the locality is for this purpose to be considered by looking at the front of the building from the street. In the most recent version of the plans (in Exhibit C), the appearance of the building will, in my view, be changed by the altered front entrance treatment, which will reinforce the distinction between the two dwellings as being part of a semi-detached building. However, even with the originally proposed sliding door there would have been a need to clearly identify the' separateness' of 153A, and this would have raised local character issues which would have needed to be assessed.
24. Mr Wood has acknowledged that local character is an important matter to be considered under the objectives of both the standard and the zone.
25. In the Joint Expert Report, there is extensive discussion by both parties in relation to Contention 9 'the proposed development is incompatible with the streetscape and character of the local area'. This discussion involved consideration of the planning principal in Project Venture Development v Pittwater Council [2005] NSWLEC 191.
26. The analysis of local character in the Joint Expert Report is not mentioned or expanded upon in the cl 4.6 variation request.
27. The cl 4.6 variation request is to be assessed solely on the basis of the written request (Rebel at [42]). I am of the opinion that the cl 4.6 variation request which forms Annexure 'B' to the Joint Expert Report has not adequately addressed the matters required to be addressed by subclause (3) (cl 4.6(4)(a)(i)).
28. For the second of the points in the discussion of cl 4.6(4), I would agree that there is an increase in housing choice and variety of housing types, albeit in both cases only marginally - and in this regard, the proposal is consistent with the zone objectives. Mr Tesoriero in the Joint Expert Report argues at par [52] that the proposal does not provide a net increase in affordable rental housing given that the existing approval includes a secondary dwelling. However, even though the secondary dwelling was approved under Division 2 of SEPP (ARH) there is no requirement for the granny flat to be available for affordable rent, whereas the additional residence currently proposed would be required to be affordable rental housing for 10 years.

Conclusion regarding the proposed cl 4.6 variation

1. The four gates through which a variation request must successfully pass before there can be a decision that compliance with the development standard for lot width is not required were explained by Moore J in Rebel (and reproduced above at [101]). My assessment is that:

(1) the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of this proposed development (cll 4.6(3)(a) and 4.6(4)(a)(i));

Finding

1. The Applicant's request has not provided sufficient information to adequately address matters required to be demonstrated by cl 4.6(3)(a), so fails cl 4.6(4)(a)(i);

(2) 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))

Finding

1. The Applicant's request does not include sufficient analysis, within the request to demonstrate that there are sufficient environmental planning grounds to justify not complying with the lot width standard and thus fails;

(3) the proposed development will be in the public interest because it is consistent with the objectives of the standard in question - set out in cl 4.1B of the LEP (cl 4.6(4)(a)(ii))

Finding

1. The objective for the lot width standard has according to the Applicant's planning expert three underlying objectives, including maintaining the low density character of the local area. However, the written request does not provide sufficient explanation of how the development proposed will maintain local character, and must fail;

(4) the proposed development will be in the public interest because it is consistent with the objectives of the R2 Low Density Residential Zone (cl 4.6(4)(a)(ii))

Finding

1. I agree that the proposal is consistent with the second and third of the zone objectives. The first objective of the zone is to provide for the housing needs of the community within a low density residential environment". The proposal provides for a net increase of one dwelling, and the area is zoned low density residential. I would agree that the objective is, on a straight reading, met.
2. All of the gates must be opened for the variation request to succeed. Thus the cl 4.6 variation request cannot be supported. Accordingly, given that obtaining approval for a cl 4.6 variation request is a jurisdictional prerequisite, the appeal must be refused.
3. Subclause (7) of cl 4.6 provides that: (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3).
4. In this matter the Court, standing in the shoes of Council is the consent authority. Paragraphs [100] - [144] in this judgment constitute the record of those factors required to be addressed.
5. Given that the refusal to grant the cl 4.6 variation request is determinative of the appeal is not necessary for me to make determinations on the other two contentions which were an issue. However, lest I be wrong in my decision on the cl 4.6 variation request I will make some brief comments about the two contentions.
6. Contention 9 raises issues of compatibility with the desired character of the locality. This was partly discussed in relation to the clause 4.6 variation request, but was discussed more extensively in the Joint Expert Report. I have considered the competing arguments presented in the Joint Expert Report at pars [84] - [96]. If it were necessary to do so, I would have reached a decision to support the view advanced by the Respondent, and, on the merits, have refused the appeal on this ground.
7. Contention 10 raises public interest issues. Some aspects of the public interest were raised in the cl 4.6 variation request, but a major additional aspect was the precedent which would be set if the proposal were approved. This was a concern to the Council and was a major concern to the objectors, Mr Borri, who spoke at the start of the proceedings, and Ms Evenhuis who made a written submission.
8. In a Class 1 matter, the outcome will depend on the facts and circumstances of each particular case. Nevertheless it is long been recognised that decisions will be seized upon as if they were formal precedents, and as a consequence, councils will come under pressure to apply the decision made in one case to others perceived by the public to be similar (Goldin v Minister for Transport administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 - a judgment which reviews earlier judgments in which the issue precedent had been discussed).
9. Were I required to formally assess the competing arguments for Contention 10, the question of precedent is likely to have been of considerable weight.

Orders

1. The orders of the Court are: 1. The Applicant is granted leave to rely on the amended plans in Exhibit C, Annexure A. 2. The written request made pursuant to cl 4.6 of the Ryde Local Environmental Plan 2014 to dispense with compliance with the lot width development standard in cl 4.1B is refused. 3. The appeal is dismissed. 4. Development Application No. LDA2017/0226 which proposes internal modifications to a building to enable its use as a dual occupancy (attached) under Division 1 of State Environmental Planning Policy (Affordable Rental Housing) 2009 is refused. 5. The exhibits, other than Exhibits 1, 3, A and C, 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: 18 January 2019