Falamaki v Council of the City of Ryde

Judgment

1. COMMISSIONER: At 153 Coxs Road, North Ryde, Mr Falamaki has constructed a dwelling pursuant to a complying development certificate (CDA No.CDP2016/077) issued on 2 August 2016. Mr Falamaki now seeks to make internal alterations to the dwelling so as to change the use of the dwelling to an attached dual occupancy. He lodged a development application seeking the same with the Council of the City of Ryde ("the Council") on 2 January 2020. The development application relies on the State Environmental Planning Policy (Affordable Rental Housing) 2009 ("SEPP ARH"), as one of the dwellings that comprise the dual occupancy is proposed to be used for the provision of affordable housing. Following the expiry of the period after which a development application is deemed to be refused, Mr Falamaki lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"), which is the appeal now before the Court.
2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 ("LEC Act"). The conciliation conference commenced on 21 September 2020. The single day allocated was not adequate and the conciliation was adjourned to 15 October 2020. On 15 October 2020, the parties did not reach an agreement and the appeal proceeded to a hearing forthwith pursuant to s 34AA(2)(b)(i). Due to the COVID-19 pandemic, a site inspection was not undertaken and the hearing was conducted by video conferencing technology.
3. At the hearing, Mr Falamaki put amended plans before the Court, including amended architectural plans and an amended landscape plan. The amended plans, which now reflect the proposed development, seek the internal alterations and a change of use to dual occupancy, and also includes the removal of hard paved areas and decking for the carrying out of landscaping. The amended development application is also accompanied by a BASIX certificate.
4. The Council remains opposed to the grant of development consent. It contends that the site does not comply with the development standard for the minimum road frontage, and that the request concerning the departure from the standard is not adequate. The Council also contends that the design of the development is incompatible with the character of the local area, and that it is inconsistent with the controls in the Ryde Development Control Plan 2014 ("RDCP 2014"). The Council also raises a contention with respect to the public interest.
5. For the reasons that are set out below, I have determined that the written request concerning the breach of the road frontage development standard adequately addresses the requisite matters, and that the proposed development is in the public interest as it is consistent with the objective of the standard and the objectives of the zone. As set out below, I also consider that the proposed development is compatible with the character of the local area in circumstances where the built form already exists, where there are already dual occupancy developments in the local area, and where the site is adjacent to a child care centre with a large area of hardstand car parking in the front setback. Further, I conclude that whilst the building does not comply with local planning controls, the non-compliances are brought about by the approval of the existing building and the application of the SEPP ARH. Those non-compliances, therefore, do not warrant refusal of the proposed development or result in a development that is contrary to the public interest.

The history concerning the site

1. The approval to construct the dwelling that is located on the site was given by a private certifier through a Complying Development Certificate ("CDC") on 2 August 2016 (CDA No. CDP2016/077), issued pursuant to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("SEPP ECDC") and Div 4.5 of the EPA Act. The CDC was then modified in 2016 on two occasions.
2. A further CDC was issued on 20 November 2017 for a secondary dwelling that was to occupy parts of the first and second floor within the southwest corner of the building. Works are currently underway for the construction of the secondary dwelling. However, the works have stopped to await the outcome on this appeal.
3. A previous development application for internal alterations and change of use to a dual occupancy (LDA2017/0226), was refused by the Court on appeal on 18 January 2019: see Falamaki v Council of the City of Ryde [2019] NSWLEC 1007.

The proposed development

1. The existing layout for the dwelling contains a reflected duplication, with a central wall running the length of the habitable space. The proposed development therefore requires minimal works to facilitate its conversion to an attached dual occupancy.
2. The works include filling in of two small internal openings in the central wall to create a common wall between the two dwellings, the installation of a wall to split the current double garage into two single garages and the installation of a second staircase to allow access to the first floor within the southern dwelling. Additionally, on the first floor at the front of the building, there is additional floor space proposed to be added within voids that currently exist above the ground floor garage and entry areas. This creates additional bedrooms for each of the dwellings that comprise the dual occupancies.
3. The works are shown on the plans that form part of the amended development application, which are shown in Figure 1.
4. One of the dwellings is proposed to be dedicated as affordable housing for a period of 10 years, which means that, for 10 years from the date of issue of the occupation certificate, the dwelling is to be used for the purposes of affordable housing and will be managed by a community housing provider. The proposed development also includes strata subdivision.
5. The proposed development also includes the removal of a timber deck and bin area on the western side of the site's frontage, to make provision for an additional 10m2 of landscaped area within the front setback, and the removal of some existing timber deck alfresco areas and paved areas in the rear yard to allow for additional landscaped area.

The site and the locality

1. The site is legally identified as Lot 159 in DP 28396 and is known as 153 Coxs Road, North Ryde. The site is rectangular in shape, with a frontage of 15.24m to Coxs Road to the south-west and a total area of 534.17m2.
2. The site is located on the north-eastern side of Cox's Road, between Blamey Street and Blenheim Road. The road falls from north-west to south-east, and the site therefore has a cross-fall with a maximum fall of around 1.3m.
3. The local area north of the Coxs Road alignment is characterised by single and two storey dwelling houses, as well as some more recent dual occupancy developments. Adjoining the site to the east is a child care centre, but dwelling houses otherwise dominate the northern side of Coxs Road. The landscaped grounds of Macquarie Hospital are located on the southern side of Coxs Road, opposite the site.

The planning framework

1. In determining the development application, s 4.15(1)(a) of the EPA Act requires the Court, in exercising the functions of the consent authority, to consider the provisions of any applicable environmental planning instrument, proposed instrument, development control plan, planning agreement, and regulations. Section 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. The site is zoned R2 - Low Density Residential, pursuant to Ryde Local Environmental Plan 2014 ("RLEP 2014"), and attached dual occupancies are a nominated permissible use in the R2 zone. The zone objectives, which are required to be considered in determining a development application, are as follows: 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.
3. The application relies on the provisions of the SEPP ARH. Part 2 Division 1 of the SEPP ARH applies to in-fill affordable housing, and includes dual occupancies. Clause 10(2) of the SEPP ARH provides that "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". The parties agree that the site's location meets the definition of an accessible area.
4. As a result of the application of Part 2 Division 1, cl 13 of the SEPP ARH allows an increase in the maximum FSR that applies to the proposal by 0.5:1 on the basis that the proposed development seeks to dedicate 50% of the floor area for the purpose of affordable housing. This increases the allowable FSR from 0.5:1 to 1:1, with which the proposal complies with a FSR of 0.66:1.
5. At cl 14 of the SEPP ARH, the policy sets out a number of grounds on which consent cannot be refused if certain criteria are met. It provides, at cl 14: 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, (c) landscaped area if - (i) in the case of a development application made by a social housing provider - at least 35 square metres of landscaped area per dwelling is provided, or (ii) in any other case - at least 30 per cent of the site area is to be landscaped, (d) deep soil zones if, in relation to that part of the site area (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) that is not built on, paved or otherwise sealed - (i) there is soil of a sufficient depth to support the growth of trees and shrubs on an area of not less than 15 per cent of the site area (the deep soil zone), and (ii) each area forming part of the deep soil zone has a minimum dimension of 3 metres, and (iii) if practicable, at least two-thirds of the deep soil zone is located at the rear of the site area, (e) solar access if living rooms and private open spaces for a minimum of 70 per cent of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter. (2) General A consent authority must not refuse consent to development to which this Division applies on any of the following grounds - (a) parking if - (i) in the case of a development application made by a social housing provider for development on land in an accessible area - at least 0.4 parking spaces are provided for each dwelling containing 1 bedroom, at least 0.5 parking spaces are provided for each dwelling containing 2 bedrooms and at least 1 parking space is provided for each dwelling containing 3 or more bedrooms, or (ii) in any other case - at least 0.5 parking spaces are provided for each dwelling containing 1 bedroom, at least 1 parking space is provided for each dwelling containing 2 bedrooms and at least 1.5 parking spaces are provided for each dwelling containing 3 or more bedrooms, (b) dwelling size if each dwelling has a gross floor area of at least - (i) 35 square metres in the case of a bedsitter or studio, or (ii) 50 square metres in the case of a dwelling having 1 bedroom, or (iii) 70 square metres in the case of a dwelling having 2 bedrooms, or (iv) 95 square metres in the case of a dwelling having 3 or more bedrooms.

Expert evidence

1. Expert opinion evidence on the landscaping issues was given in a joint report authored by Mr Ali Beydoun, a landscape architect engaged by Mr Falamaki, and Mr Greg Tesoriero, a landscape architect engaged by the Council. They agree that the proposed development satisfies the minimum 15% deep soil requirement under cl 14(1)(d) of the SEPP ARH, and the minimum 30% landscaped area under cl 14(1)(c).
2. However, they disagree on questions of streetscape presentation and the consequences of the rear building setback on the landscaping. In particular, Mr Greg Tesoriero points out that the proposed development exceeds the maximum level of hard paving permitted within the front garden area for dual occupancy developments (40%), as set out in cl 2.13(e) of the RDCP 2014. He opines that this means that the proposed development has a streetscape presentation that is inconsistent with the established and desired future character of the zone. Further, Mr Greg Tesoriero opines that the non-compliant rear building setback results in rear open spaces that are inconsistent with the existing landscape character of the locality.
3. Mr Beydoun instead opines that the landscaping in the front setback is being enhanced through the provision of an additional 10 sqm of landscaped area, and the landscaping in the rear setback will be increased by the removal of some of the existing timber deck alfresco areas and paved areas.
4. Expert opinion evidence on the town planning issues was given by Mr Jonathon Wood, a town planner engaged by Mr Falamaki, and Mr Ben Tesoriero, a town planner engaged by the Council.
5. With respect to the contention raised by the Council concerning the requirement for a BASIX certificate, they both agree that this has been resolved by the provision of a BASIX certificate dated 12 October 2020. Their evidence is otherwise considered below.

Relevance of the previous decision of the Court

1. The Council submits that each of the issues in this appeal have previously been decided by the Court in Falamaki v Council of the City of Ryde. In that decision, Acting Commissioner Adam considered that the written request lodged pursuant to cl 4.6 of the RLEP 2014 did not adequately establish that compliance with the road frontage development standard was unreasonable or unnecessary (see [140]) or that there are sufficient environmental planning grounds to justify the breach of the road frontage development standard (see [141]). He also indicates, at [148], that he would have reached a decision to support the view advanced by the Council concerning compatibility with the desired character of the locality and would have "refused the appeal on this ground".
2. As conceded by the Council, the proposed development presently before the Court differs in three ways from that before the Court in Falamaki v Council of the City of Ryde. Firstly, there are changes to the landscaping for the development. Secondly, the cl 4.6 request has been revised. Thirdly, there is currently a planning proposal for a change to the RLEP 2014, which is required to be considered pursuant to s 4.15(1)(a)(ii) of the EPA Act.
3. I am not required to be consistent with a previous decision of the Court on a similar development application (see Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [48]-[56]). Nevertheless, it is self-evident that the differences described above are sufficient to support a separate and distinct assessment of the merits of the proposed development before the Court.

The breach of the development standard for the road frontage

1. As set out above at [26], the proposed development has a road frontage that is less than the development standard for the minimum road frontage for a dual occupancy, which is 20m. Instead, it has a road frontage of 15.24m. Development consent cannot be granted except in accordance with cl 4.6(2) of the RLEP 2014, and can only be granted if the Court, exercising the functions of the consent authority, reaches the state of satisfaction required by cl 4.6(4). That requires the Court to be satisfied that:

• The written request adequately addresses "that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case" (subcll 4.6(4)(a)(i) and (3)(a));
• The written request adequately addresses "that there are sufficient environmental planning grounds to justify contravening the development standard" (subcll 4.6(4)(a)(i) and (3)(b));
• The proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives of the clause (subcl 4.6(4)(a)(ii)).

1. It is well established that the Court, in exercising the functions of the consent authority, must "in fact" be satisfied of each of the above matters (see RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130). However, the state of satisfaction that compliance is unreasonable or unnecessary, and that there are sufficient environmental planning grounds to justify the contravention (the first two dot points), must be reached by reference to the written request. The evidence in the proceedings can nevertheless assist in understanding the request and considering its adequacy.
2. Mr Falamaki relies on a written request dated 11 September 2020 (Ex B).

The Council's position on the request

1. The Council contends that the written request has not adequately addressed the matters required to be demonstrated by cl 4.6(3) of the RLEP 2014, and that the proposed development is inconsistent with the objectives of the zone and of cl 4.1B.
2. In support of its position, the Council relies on the evidence of Mr (Ben) Tesoriero. He gave evidence that none of the environmental planning grounds advanced in the request are sufficient to justify the non-compliance. He opines that there is no scope for a quantitative reduction in the road frontage dimension in cl 4.1B(2)(b) of the RLEP 2014 simply because of the site area "must not refuse" criteria in cl 14(1)(b) of the SEPP ARH, as to do so would ignore the importance that road frontage widths have in defining streetscapes and the character of local areas.
3. Further, Mr Tesoriero opines that the request has failed to address that compliance is unreasonable and unnecessary in the circumstances. He considers that, whilst the dual occupancy approved in the decision of Clearcut Homes Pty Ltd v City of Ryde Council [2020] NSWLEC 1249 ("Clearcut") is relied upon in the request, the two development sites are distinct. He points out that, unlike in Clearcut, there are a significant number of local planning controls that are not met by the proposed development.
4. Mr Tesoriero also gave evidence that the proposed development is not consistent with the objective of the standard to "achieve planned residential density" or with the objective of the zone to provide for housing needs "within a low density residential environment", as the development is for the purposes of a dual occupancy in circumstances where the desired future character statement in the RDCP 2014 is to limit the number of dual occupancies.
5. On the issue of the breach of the road frontage development standard and the cl 4.6 request, Mr Tesoriero also gave evidence against "the legitimatisation of a building constructed for the express purposes of circumventing Council's development standards" through a CDC and a subsequent application relying on the SEPP ARH. This evidence is dealt with in the context of my consideration of the separate contention that raises the public interest, and is not dealt with in considering the matters about which I am required to be satisfied pursuant to cl 4.6(4).

The satisfaction required by cl 4.6(4) is reached

1. I accept the evidence of Mr Tesoriero that the proposed development can be easily distinguished from the circumstances in Clearcut. Other than the construction of the objective of the standard, none of the reasons given in Clearcut form the basis for my satisfaction of the matters required by cl 4.6(4) in the present development application. I accept the evidence of Mr Tesoriero that the departure from the minimum road frontage development standard cannot be described as negligible and that the proposed development does not achieve compliance with the RDCP 2014 controls with respect to dual occupancies. The particular breaches that are readily apparent are the percentage of hard paved area in the front setback, the reduced front setback and the reduced rear setback.
2. Nevertheless, I am satisfied that each of the matters required by cl 4.6(4) is satisfied, for the reasons that are set out below. Before setting out those reasons, it is helpful to first understand the meaning of the objective to cl 4.1B of the RLEP 2014.

The meaning of the objective

1. The objective of the development standard in cl 4.1B of the RLEP 2014, which includes both the minimum lot size and the minimum road frontage, is "to achieve planned residential density in certain zones". In Clearcut, the meaning of this objective was before the Court. I considered that the objective means that the fixing of minimum road frontage widths and lot sizes is intended to set the planned "size and number of residential uses within a given area". That is, I considered that the objective is descriptive of the fixing of the minimum road frontage widths and lot sizes. I stated this in the following way (at [47]-[48]): "47 The words "planned residential density" is not a defined term, and there is no indication in the RLEP 2014 as to the quantitative planned residential density for the low density residential zone, to which the clause applies. The plain meaning of "Residential density", in the context of a planning instrument, can be understood as, firstly, the size and number of residential uses within a given area, where a higher density residential area will have smaller sized uses in larger numbers, such as units in a residential flat building. Secondly, it can refer to bulk and scale, where the more bulk and scale you have on a property results in an area that is denser in bulk and scale. The development standards in cl 4.1B(2) concern the former, and not the latter. As such, in this context, the words "planned residential density" refer to the desired size and number of residential uses within a given area and consequentially, across the zone. It is apparent, therefore, that by fixing minimum road frontage widths and lot sizes, the clause operates to "achieve planned residential density". 48 The broader context, in which the uses to which cl 4.1B apply are permissible uses in the zone and cl 4.1B is a development standard that regulates an aspect of carrying out development for the purpose of those permissible uses, is not inconsistent with this interpretation of the objective."
2. Consistent with my findings in Clearcut, I do not accept the evidence of Mr Tesoriero that the term "planned residential density" in the objective can be constrained by that part of the description of the desired future character in the RDCP 2014 that refers to a "limited number of dual occupancy (attached) buildings, and these buildings look similar to detached dwellings". There are two reasons for this.

Compliance with the development standard is unreasonable and unnecessary

1. I am satisfied that the written request adequately demonstrates that compliance with the road frontage development standard is unreasonable or unnecessary in the circumstances of the case.
2. The request relies on the first and second of the five different ways, described in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, in which compliance can be considered to be unreasonable or unnecessary. The first way is that compliance is unreasonable or unnecessary because the objective of the standard is achieved notwithstanding the non-compliance, and the second way is that compliance is unreasonable or unnecessary because the purpose of the standard is not relevant to the proposed development.
3. I am persuaded that the written request adequately establishes that compliance is unreasonable and unnecessary based on the second way, because the objective of the standard, insofar as it requires compliance with the lot area and road frontage development standards to achieve the planned residential density, is not relevant to the proposed development. As set out at p 14 of the written request, the proposed development complies with the "must not refuse" site area of 450m2 contained in the SEPP ARH for infill development, which applies to dual occupancies. This is less than the minimum lot area development standard of 580m2. As set out in the request, the two development standards of lot area and road frontage, are interrelated.
4. Given that interrelationship, the request demonstrates that it is unreasonable to require compliance with the road frontage development standard where a reduced lot area is acceptable as a result of the application of the SEPP ARH. This alone addresses the matters required by cl 4.6(3)(a), and I am satisfied on this point.
5. Further, insofar as the objective to achieve "planned residential density" is met by fixing the lot sizes and road frontage widths specified in the clause, I accept that it is not relevant in circumstances where a reduced lot size is acceptable by virtue of the application of the SEPP ARH. This is stated in the request in the following way: "The permitted reduction in relation to site area is such that the single objective of Clause 4.1B of the Ryde LEP 2014 for 'planned density' is in essence overruled by the aims of the state planning policy".

There are sufficient environmental planning grounds for the contravention

1. I am also satisfied that the request establishes that there are sufficient environmental planning grounds to justify the contravention of the road frontage development standard. It does this, primarily, in the introduction and background to the variation on pp 2-3 of the written request, which forms the basis for the statement at par 8 of p 17.
2. It establishes sufficient environmental planning grounds by, firstly, stating that the proportional reduction in lot size permitted by the SEPP ARH should also be applied to the road frontage control, and if it does not do so, the road frontage control acts as a constraint to the provision of affordable housing pursuant to the SEPP ARH.
3. In support of this statement, the request cites the decision of Commissioner O'Neill in Amine, Mouhamad v Bankstown City Council [2014] NSWLEC 1188, in which the Commissioner considered the application of development standards on a development to which the SEPP ARH applied and considered that "… 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 than would otherwise be required".
4. Secondly, this forms the basis for the statement in par 8 of p 17, in which the request states: "The variation to the allotment width control enables development of the Site pursuant to SEPP ARH and furthers the Aims of the Policy - specifically those set out at Clause 3(a) and (b) and will facilitate the delivery of 1 affordable rental housing dwelling on the site required to be used for affordable rental housing for a period of 10 years. Strict compliance with the allotment width control would prevent this from occurring and prevent development for a dual occupancy from being located on the site despite compliance with the minimum site area provision of the SEPP ARH."
5. As a result, I am satisfied that the provision of affordable housing and the compliance with the "must not refuse" criteria for site area in the SEPP ARH, which allows the development to take place on a smaller area of land, are sufficient environmental planning grounds to justify a proportionally equivalent departure from the road frontage of the proposed development. The reduction in lot size is around 22.4% from the standard and the departure from the road frontage development standard is roughly proportionate, at 23.8% (p 2). I am therefore satisfied that the request establishes sufficient environmental planning grounds that justifies the departure from the road frontage development standard.

The proposed development is consistent with the objectives of the zone

1. I am also satisfied that the proposed development is consistent with the objectives of the zone. The objectives of the zone are set out above at [18]. I am satisfied that the dual occupancy development provides for the housing needs of the community through a low density form of residential development, consistent with the first objective. The second objective is not relevant to the proposed development. Consistent with the third objective, the proposed development provides a different form of housing, in the form of dual occupancy, to the dwelling houses typically found along Coxs Road, and also includes the provision of one affordable housing dwelling that will be managed by a social housing provider.

The proposed development is consistent with the objective of the standard

1. As set out above, the objective of the development standard in cl 4.1B of the RDCP 2014, which includes both the minimum lot size and the minimum road frontage, is "to achieve planned residential density in certain zones". Whilst I consider that this "planned residential density" describes what is achieved by fixing the development standards for lot size and road frontage in the RLEP 2014, I also consider that the meaning of "planned residential density" can be construed by having regard to the proposed amendments to cl 4.1B as they might apply to dual occupancies to which the SEPP ARH applies.
2. The planning proposal has a clear mandate for changing the road frontage development standard for dual occupancies to 15m to reflect the standards that apply to dual occupancies pursuant to the SEPP ECDC. It is therefore contemplated that the planned residential density includes dual occupancies on road frontage widths of more than 15m. The proposed development complies with this road frontage width, with a frontage of 15.24m.
3. I note, however, that the planning proposal also includes a minimum lot area of 750m2, which reflects a differing planned residential density with which the proposed development does not comply. Nevertheless, the application of the SEPP ARH to the proposed development means that a dual occupancy to which SEPP ARH applies cannot be refused if it is proposed on a site area of at least 450m2. As such, the "planned residential density" must be sufficiently flexible to contemplate the application of the SEPP ARH, which prevails over the RLEP 2014 to the extent of any inconsistency and which is designed to encourage the supply of affordable rental housing on smaller lots (and with greater FSR) than that contemplated by the RLEP 2014.
4. The proposed development does not achieve the planned residential density insofar as that density is brought about by fixing the minimum lot size and road frontage in cl 4.1B (either as it currently applies, or as proposed to be amended by the planning proposal). Nonetheless, it is consistent with the objective to achieve planned residential density where that density incorporates the density brought about by the road frontage development standard contemplated by the planning proposal, and by the application of the "must not refuse" criteria for the site area pursuant to the SEPP ARH.

Character

1. Clause 16A of the SEPP ARH is set out at [21] and requires consideration of "whether the design of the development is compatible with the character of the local area".
2. The Council contends that the design of the proposed dual occupancy is not compatible with the character of the area. It contends that the local area is the visual catchment of the site, which is the area bounded by Blamey Street, Schumack Street and the allotments at 143 Coxs Road and 14 Schumack Street. It contends that the building typology is of single and two storey dwelling houses, with some more recent dual occupancy developments interspersed throughout, and that the frontage treatment is typically grassed with garden variety vegetation and tree planting within a setback of around 6m. The Council contends that the proposed development is not compatible with the character of the local area as a result of the building typology, with two dwellings on a narrower frontage than that anticipated by the RLEP 2014, and as a result of its additional floor space, reduced landscaping, reduced front and rear setbacks to that required by the RDCP 2014, and higher percentage of hardstand area.
3. The Council relies on the evidence of Mr Tesoriero, who opines that the proposed dual occupancy will have a greater FSR than that which applies to the local area, and will have a higher density on a frontage that is narrower than the desired density sought by cl 4.1B(2)(b) of the RLEP 2014. Further, he considers that there is an apparent increase in intensity arising from the two letterboxes, two street numbers, two separate balconies, two separate front area, and heightened activity, which he opines is not compatible with the character of the local rea. As a result of this, and the non-compliance with the minimum road frontage in the RLEP 2014 and the setback controls and hardstand area in the RDCP 2014, Mr Tesoriero opines that the proposed development is not compatible with the desired future character of the local area.

The design of the development is compatible with the character of the local area

1. The focus of cl 16A of the SEPP ARH is on the "design" of the development. The proposed development is for internal alterations and a change of use to dual occupancy, and also includes the removal of hard paved areas and decking for the carrying out landscaping. Further, it is well established that compatibility does not require "sameness". I do not accept the Council's contention that the design of the development is not compatible with the character of the local area, for the following reasons.
2. Firstly, I accept the evidence of Mr Wood that existing form of the development on the subject site "must be acknowledged as being a fundamental part of the existing character of the locality" (Ex 3 p 18). Despite the narrower road frontage than that required by cl 4.1B of the RLEP 2014, the larger FSR than what would apply pursuant to the RLEP 2014, and the shorter front and rear setbacks, the building to which the proposed development relates already forms part of the character of the local area. Other than internal alterations, the building remains physically unchanged and I accept the evidence of Mr Wood that the presentation of the building and its contribution to character is unchanged. As such, the proposed development will continue to contribute to the character of the streetscape and is compatible with the character of the local area.
3. Secondly, the increase in residential density apparent from the two letterboxes, two street numbers, additional vehicles, two separate balconies and two separate front yard areas is not a basis upon which it can be said that the design of the development is not compatible with the character of the local area. To the contrary, each of these features are typical of a dual occupancy development, which is permissible in the zone and already exist within the local area visual catchment identified by the Council.
4. Thirdly, the large hardstand area within the front setback is compatible with the character of the local area. I accept that the proposed development has a larger area of hard paved or concrete surfaces in the front setback than what is typical of the front setback areas of dwellings and dual occupancies in the local area. However, the child care centre adjacent to the site has a large hardstand area which dominates its front setback. Accordingly, in this context, the hardstand area in the proposed development is not out of character and is compatible with the character of the local area.

Hard paved area, front and rear setbacks

1. As set out above, the proposed development does not comply with the controls in the RDCP 2014 with respect to the front and rear setbacks, and the hard paved area. The front setback is 4.62m (the required setback is 6m), the rear setback is 4.62m (the required setback is 8.76m) and the hard paved area is around 55.7% but varies depending on whose calculation is relied upon (the maximum hard paved area control is 40%). The percentage of hardstand area is largely a result of a double width driveway and two hardstand parking areas in front of the garages.
2. Given that the proposed development is for internal alterations, a change of use, and changes to the landscaping and hard paved areas, I accept the opinion of Mr Wood that the numerical provisions concerning the front and rear setbacks have limited relevance in circumstances where there is no change to the setbacks. Although the existing front and rear setbacks are undesirable, it is acceptable that they remain as they currently exist given the nature and scope of the proposed development.
3. Further, in circumstances where the Council now agrees that the proposed development meets the "must not refuse" criteria in cl 14(1)(c) of the SEPP ARH for the provision of landscaping, no additional area of landscaping is required to be provided. As such, the percentage of the hard paved area is acceptable notwithstanding that it breaches the maximum percentage set out in the RDCP 2014. Additionally, I above considered that the hardstand area within the front setback is not out of character in the streetscape context, given the large hardstand area that dominates the front setback of the adjacent child care centre.

Parking and pedestrian access

1. In response to the changes made to the plans to increase the landscaping, including the removal of the separate pedestrian access, Mr Tesoriero gave evidence that the clearance around and between the cars is not sufficient "to enable reasonable pedestrian access to the dwellings, particularly if one were to be carrying something, wheeling a pram or using a walking device etc" (Ex 5 p 6). In particular, he notes that the space between the car and the side of the driveway for dwelling number 153 is around 350mm, where the adjacent area beside the driveway is the onsite detention tank that is around 320mm below the level of the driveway. He also notes that the space between the cars is 650mm, and the space between the car parking space for number 153A and the edge of the driveway is 250mm. He considers that this means that the "pedestrian entry arrangement to the building from the street is not clearly identifiable when vehicles are parked".
2. I accept Mr Tesoriero's evidence that the width of the driveway means that a passenger or pedestrian will be required to traverse a narrow route to reach the front door of the dwelling when cars are parked in the driveway, especially on the edge of the driveway where the height of the driveway is above the onsite detention tank. However, I do not consider that this is a sufficient basis upon which to refuse the development application. The principal parking space for each dwelling is within the enclosed garage and I accept the evidence of Mr Wood that shared pedestrian and vehicular access is common and acceptable for dual occupancies. Further, there is no requirement in the RDCP 2014 for separate pedestrian pathways for dual occupancies and I accept Mr Wood's position that the pedestrian entrance doors to the dwelling are visible from the street, will not be obscured by the parked cars and meet the control in (i) of Section 2.5.1 of Part 3.3 of the RDCP 2014 for the pedestrian entrance to be clearly identifiable from the street.

Public interest

1. The Council contends that the proposed development is not in the public interest because it legitimises a building deliberately constructed with voids and containing a mirror image layout using a CDC, which avoids the application of the controls that arise under the RLEP 2014 and the RDCP 2014. It contends that this establishes a poor precedent.
2. In support of this contention, the Council relies on the evidence of Mr Tesoriero, whose evidence is that the SEPP ECDC has been utilised to construct a dual occupancy building "under the thinly veiled guise of a dwelling house". He opines that "the building already constitutes a mirror image style dual occupancy (attached) development, except for some minor infills to the common wall in order to divide the two dwellings". Mr Tesoriero is critical of the dwelling constructed pursuant to the CDC, about which he considers that "large voids have been included throughout the building to maintain compliance with floor space ratio provisions… with the intent that these voids be 'filled-in' in the future via the generous floor space ratio bonuses that can be attained from the SEPP ARH". The result, Mr Tesoriero opines, is that the application "represents a purposeful attempt to circumvent Council's planning controls that would otherwise preclude both the building envelope and proposed dual occupancy (attached) land use on the subject site." In particular, he references the non-compliance with the front setback control, rear setback control, minimum road frontage and landscaping controls.
3. Whilst I appreciate the Council's position, I do not consider that any of these matters warrant refusal of the proposed development.
4. Firstly, whether or not there has been an inappropriate use of the SEPP ECDC to construct a dwelling house that contains voids and a mirror image layout, or setbacks that do not comply with the RDCP 2014, is not relevant to the merits of the proposed development. As stated by Acting Commissioner Adam in Falamaki v Council of the City of Ryde, at [32]: "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."

Outcome of the appeal

1. For the reasons set out above, I am satisfied of the matters required by cl 4.6(4) of the RLEP 2014, and that the power pursuant to cl 4.6(2) should be exercised in favour of granting development consent notwithstanding that the proposed development is on a site that breaches the road frontage development standard for dual occupancies. I have also found that the design of the proposed development is compatible with the character of the local area in the circumstances and in the context in which the site is located. I am also satisfied that any breaches of the local planning controls are acceptable in circumstances where they already exist by reason of the approval of the existing dwelling under the CDC, or where they result from the application of the SEPP ARH. I have also considered the submissions made by local residents in response to the notification of the development application, and none of the issues raised by them warrant refusal of the application. I therefore consider it appropriate to grant consent subject to conditions.
2. In granting consent, I give considerable weight to the removal of hard paved areas and decking so as to achieve a landscaped area of 30%, and to the variety of landscaping proposed in the landscape plan, including the proposed Corymbia eximia and an existing Tuckeroo in the front setback. This will result in an improved streetscape presentation for the building and an acceptable outcome for the rear setback, particularly in circumstances where the development is not required to meet the local planning controls with respect to landscaping.
3. The parties have provided conditions of consent, which are agreed, save for a condition with respect to the payment of a developer contribution pursuant to s 7.11 of the EPA Act. The applicable contributions plan is the City of Ryde Section 7.11 Development Contributions Plan 2020 ("CP 2020"). Pursuant to the Section 2.6 of the CP 2020, the CP 2020 specifies that it does not apply to certain types of developments, which include affordable housing. The term "affordable housing" has the same meaning as that in the EPA Act (see Section 7.7 of the Plan), and would therefore include the dwelling that is proposed to be dedicated as affordable housing pursuant to cl 17 of the SEPP ARH. It therefore appears that the CP 2020 does not apply to the proposed development. Nevertheless, the Council seeks that a condition requiring a contribution be imposed on the basis that the CP 2020 does apply.

Addendum made on 23 December 2020

1. In accordance with the terms of directions in paragraph [106] of my judgment of 11 December 2020, the parties have addressed me through written submissions on the application of the CP 2020 to the proposed development.
2. Section 2.6 of the CP 2020 sets out a list of types of development to which it does not apply. One of the items on the list is "affordable housing". Another item on the list is "a change of land use not involving the creation of… (ii) additional dwellings; (iii) increased population". The Council submits that the phrasing of the latter means that the CP 2020 is intended to apply to the proposed development, which results in the creation of an additional dwelling and an increased population. It submits that the structure of the section requires all of the items in the list to be considered, and the exemption for affordable housing does not apply due to the change of land use.
3. I cannot accept this submission. Instead, I accept the submission of Mr Falamaki that section 2.6 of the CP 2020 exempts several categories of development from CP 2020. As submitted by him, if the development falls under any of these categories, then the CP 2020 does not apply to such a development.
4. Accordingly, section 2.6 of the CP 2020 ought to be interpreted by its plain meaning, and "affordable housing" is clearly listed as a type or category of development to which the CP 2020 does not apply. As set out above, the term in the CP 2020 has the same meaning as that in the EPA Act, and therefore includes the dwelling that is proposed to be dedicated as affordable housing. A change of land use is another type or category of development to which the CP 2020 does not apply, although there is a "carve out" for those changes in use that result in additional lots, additional dwellings, increase populations etc. The fact that the proposed development does not fall within the latter category, due to the carve out, does not disqualify it from falling within the former category.
5. I therefore decline to impose condition 16 as sought by the Council.

Final orders

1. The Court orders that: 1. Leave is granted to the applicant to amend the development application to rely on the plans and documents referred to in condition 1 of Annexure A. 2. The appeal is upheld. 3. Development consent is granted for the change of use and carrying out of internal alterations and landscaping for the purpose of an attached dual occupancy at 153 Coxs Road, North Ryde, with the dedication of one of the dwellings that comprise the dual occupancy as affordable housing pursuant to cl 17 of the State Environmental Planning Policy (Affordable Rental Housing) 2009, and subject to the conditions of development consent in Annexure A.

Amendments 23 December 2020 - Refer to Addendum at [107]-[112]. 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: 23 December 2020