Gabriel Stefanidis v Randwick City Council

Land and Environment Court (NSW)|2017-05-26|Before: Mr J

EX TEMPORE JUDGMENT

COMMISSIONER: In November 2016 Mr Stefanidis lodged a development application with Randwick City Council, DA/828/216. The application sought consent for: the demolition of existing structures; Torrens title subdivision into two lots; construction of two by two storey semi-detached dwellings with partial basement level car parking; landscaping and associated works. The application relied on a variation to lot size. The proposal is located at 22 Windsor Street, Matraville. The appeal seeks to overturn council's refusal of the development application.
The appeal was subject to mandatory conciliation (34AA of the Land and Environment Court Act 1979 "LEC Act") however agreement was not reached and conciliation was terminated. The proceedings were dealt with as hearing. The parties consented to the submission of evidence given during the conciliation conference in the hearing (s34AA(2)(b)(ii) Land and Environment Court Act).

The Site

The site is legally described as Lot 28 in DP36113. The site is located at the northern side of Windsor Street and has frontage of 15.85 metres and a depth of 47.67 metres, the total site area is 770 square metres. The site is regular in shape and oriented in a north-south configuration. Topographically, the site falls approximately 2.5 metres from the northern, or rear boundary, towards Windsor Street at the southern frontage.

The Locality

The surrounding area is characterised by dwelling houses consistent with its zoning. To the east of the site is a part two, part three storey dwelling with double garage, to the west of the site is a single storey dwelling with garage. The site is close to the intersection of Windsor and Patterson Street.
Relevant to the contentions in dispute in this matter, the following semi-detached and attached dual-occupancy dwellings are located within Windsor Street: 17 to 19 Windsor Street; 26 to 26A Windsor Street; 28 to 28A Windsor Street, 29 to 29A Windsor Street, and 38-38A Windsor Street Matraville. 33 Windsor Street Matraville, is an existing dwelling house demolished and has been approved for development of an attached dual-occupancy dwelling.
In hearing the appeal the role of the Court (cl 39 of the Land and Environment Court Act) is to assess and determine the application based on the evidence in the proceedings and the amended plans.
The issues for the Court to determine are: 1. Whether the request for a variation to lot size utilising cl 4.6 of the LEP is well founded and worthy of support and subsequently; 2. Where the application is worthy of approval following an assessment under s 79C of the Act. The Planning Controls
The site is located within the R2 Low Density Residential Zone under the provisions of the Randwick Local Environmental Plan 2012 (LEP 2012). The proposed development is defined as subdivision, and dwelling houses, and is permitted with consent.
Clause 2.3(2) of LEP 2012 requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect to land within the zone. The objectives of the R2 zone are: to provide for housing needs of the community within a low density residential environment, to enable other land users that provide facilities or services to the meet the day-to-day needs of residents; to recognise the desirable elements of the existing streetscape and built form or in precincts undergoing transition that contribute to the desired future character of the area, to protect the amenity of residence; to encourage housing affordability, to enable smaller scale business uses in existing commercial buildings.
Part 4 of LEP 2012 contains principal development standards with cl 4.1 relevant to the application. It is in the following form, Clause 4.1 minimum subdivision lot size: (1) The objectives of this clause are as follows; (a)To minimise any adverse impact of subdivision and the development on the amenity of neighbouring properties, (b)To ensure that lot sizes allow development to be sited to protect natural or cultural features including heritage items and to retain special features such as trees and views, (c)To ensure that lot sizes are able to accommodate development that is suitable for its purpose. (2) This clause applies to subdivision of any land shown on the lot size map that requires development consent and is carried out after the commencement of this plan. (3) The size of any lot resulting from the subdivision of land to which this clause applies is not to be less than the minimum size on the lot size map in relation to that land. (4) This clause does not imply to subdivision of individual lots in a strata plan or community title scheme.
The map that applies to cl 4.1 provides a minimum lot size of 400 square metres. Therefore as the proposed lots that would result from the subdivision in this application are 393.8 square metres and 376.5 square metres, the proposal fails to satisfy this development standard. The applicant relies on an objection pursuant to the provisions of cl 4.6 of the LEP. This matter is discussed later in my judgment.
Randwick City Council Development Control Plan (DCP) applies to the site, with Part C1 Low Density Residential particularly relevant to the application. In addition to the minimum lot size provisions that are contained in the LEP, the DCP provides controls for minimum lot frontage. For allotments resulting from subdivision of land, within the R2 zone for the purpose of dwelling houses and semi-detached dwellings, the control is 12 metres. The development before the Court does not comply with that control. The objectives of the control are: to ensure land subdivision respects the predominant subdivision and development pattern of the locality, to ensure land subdivision creates allotments that have adequate width and configurations to deliver suitable building design and maintain the amenity of the neighbouring properties. The minimum lot frontage control is provided at cl 1.2.1 as follows: the minimum frontage width for the allotments resulting from the subdivision of land within R2 (Low Density Residential) for the purposes of dwelling houses and semi-detached dwellings is 12 metres.
The development application proposes subdivision of land which results in two lots with noncompliant frontage as follows: lot one 7.95 metres; lot two 7.925 metres. Council argues that the frontage width of each of the proposed lots does not respect the predominant subdivision pattern of the locality. In addition, they seek refusal of the application on the basis that: the proposed lots are inconsistent with the established subdivision pattern in the immediate locality; are inconsistent with the existing and desired future character of the local area; and approval of the application is not in the public interest.
In support of its contention that the proposed development is inconsistent with character, Council states that, as a result of cl 4.4 of the LEP, the permitted floor space ratio for the proposed development is 0.75 to 1 which is higher than the permitted maximum floor space of 0.5 to 1 that would apply if the site were not subdivided. Clause 4.4 of the LEP states: The objectives of the clause are as follows: To ensure the size and scale of development is compatible with the desired future character of the locality, To ensure that buildings are well articulated and respond to the environmental and energy needs, To ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, To ensure that development does not adversely impact on the amenity of adjoining or neighbouring lands in terms of visual bulk, loss of privacy, overshadowing and views. 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.
Clause 2A states st sub cl 2, the maximum floor space ratio for a dwelling house, or a semi-detached dwelling, on land in the R2 Low Density Residential or R3 Medium Density Residential is not to exceed: 1. If the lot is more than 300 square metres but not more than 450 square metres 0.75 to 1 2. If the lot is more than 450 square metres but not more than 600 square metres 0.65 to 1, or if the lot is more than 600 square metres 0.6 to 1.
The floor space ratio map indicates the maximum floor space ratio for the building on the land is 0.5 to 1. Sub clause 2A indicates the permitted floor space ratio for development for the purposes of a dwelling house or semi‑detached dwelling on the land within R2 is variable on lot size. It is agreed that the maximum compliant floor space that can be achieved on the site without subdivision is 0.6 although, this is only in the case of a dwelling house or a semi-detached dwelling. The maximum compliant floor space that can be achieved on this site without subdivision in the case of a dual occupancy is 0.5 to 1.
As noted in the proceeding, the applicant relies on a variation to cl 4.1 (minimum lot size). The LEP at cl 4.6 provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances. However, consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addresses the matters required to be demonstrated by cl 4.6(3) namely: 1. Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and 2. That there are sufficient environmental planning grounds to justify contravening the development standard.
Whether the Court accepts the applicant's cl 4.6 variation in relation to lot size is a jurisdictional precondition to consent.

Expert Evidence

The Court heard expert planning evidence from Mr Betros for the applicant, and Mr Mead for the Council. The experts participated in a joint conferencing process and produced a joint expert report that was tendered in the proceedings as Exhibit 3.

Is the requested variation to lot size acceptable?

Clause 4.6 of the LEP imposes a precondition to the consent authority exercising the power to grant development consent on a land to which the clause applies. If I am not satisfied that the provisions of the clause are met, consent cannot be granted. Clause 4.6 is in the following form:

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.

It is clear from a reading of cl 4.6, within LEP 2012, that the onus is on the applicant to meet the tests of cl 4.6 in seeking flexibility to the lot size by demonstrating that the breaches of the development standard are justified. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7, Preston CJ outlined that commissioners, in exercising the functions of the consent authority on appeal, have a power to grant consent to developments that contravene the lot size standard, however they cannot grant such a development consent unless they: 1. Are satisfied that the proposed development will be consistent with the objectives of the zone, 2. Are satisfied the proposed development will be consistent with the objectives of the standard, 3. Have considered a written request that demonstrates compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and they are satisfied that the matters required to be demonstrated have adequately been addressed, 4. Have considered a written request that demonstrates there are sufficient environmental planning grounds to justify contravening the development standard and with the Court the matters required to be demonstrated have adequately been addressed. 5. I have applied these tests to the current application.

Consistency with the Zone Objectives

In considering the question of consistency in relation to zone objectives I have utilised the guiding principle divined in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGERA 21 at para 21 as follows: The guiding principle then is that development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show the development promotes or is ancillary to those objectives nor even that it is compatible.
On the basis of the evidence of the planning experts, the variation request, and the Joint Report, I accept that it can be reasonably argued that the proposed development is consistent with the objectives in the zone, in that it: will provide for the housing needs of the community; and assist in achieving a variety of housing types within a low density environment. On the basis of the evidence I accept that the development, as proposed, is not antipathetic to the objective of recognising the desirable elements of the streetscape and built form in the relevant locality. Pursuant to cl 4.64(a)(ii) I find the development consistent with the zone objectives.

Consistency with the objectives of the standard in question

The objectives of cl 4.1 minimum lot size are: 1. To minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties, 2. To ensure that lot sizes allow development to be sited to protect natural or cultural features including heritage items and to retain special features such as trees and views, 3. To ensure that lot sizes are able to accommodate development that is suitable for its purpose.
In the circumstances of the case objective (a) and (c) are the most relevant.
In summary the written request prepared by Mr Betros for the applicant (exhibit B) provides the following reasoning for the variation: Strict compliance with the minimum lot size is unreasonable or unnecessary in the circumstances on the case on the basis that the minor degree of the departure (1.5% to 6%), consistency with the type of development associated with the departure, indiscernible degree of the departure which is due to the skewed nature of the rear boundary and that an additional 2 metre site depth which would achieve compliance with the 400 square metre lot sizes, would not have any material improvement to the surrounding or the proposed dwellings; consistency with the pattern, shape and orientation of allotments and development along Windsor Street, inconsequential nature of the departure in relation to streetscape, housing and amenity outcomes, the departure does not compromise the ability to provide dwellings which meet or outperform the requirements of the LEP and DCP for semi-detached dwellings, the provision of two allotments on this site with high quality semi-detached housing is consistent with the Sydney Metro Strategy 2036, Council and the Court have varied the minimum lot size.
He argues that the proposed lot size will allow for development, which minimises likely adverse impact on neighbouring properties. In this regard he notes that: the proposed allotments, and associated development, retain solar access to neighbouring properties to a greater extent than anticipated by the controls; provide for side and rear setbacks beyond that anticipated by the numeric controls; retain privacy for both adjoining dwellings; do not generate any adverse visual bulk or view impacts; provide for a building footprint less than anticipated by the controls; and provide for greater landscaping and private open space than was anticipated for the controls.
Mr Betros' evidence is that the development provides for a compatible streetscape outcome in that, the north-south oriented and rectilinear lots are consistent with the pattern of subdivision as is the proposed dwelling forms; the spatial separation in between the dwellings is consistent and compatible with that found between dwellings and attached dual-occupancies along both sides of Windsor Street. It is also in his view, consistent with the desired future character envisaged by the DCP controls. He argues the front setback and streetscape presentation are compatible with similar style developments in the streetscape and orderly pedestrian and vehicle access is able to be provided.
In the alternative, Mr Mead argues that the cl 4.6 variation request should not be upheld as, The proposal cannot be described as being consistent with the pattern and shape of allotments and development along Windsor Street", which he argues all comply with the minimum lot size and all but two comply with the DCP allotment width control. He concluded in the Joint Report (at 2.1.5) that his analysis of the proposal and the locality is that the proposed development would be inconsistent with the predominant subdivision pattern. He does not concur with Mr Betros that it achieves dwelling diversity as the development in his view will rather create another single dwelling on a Torrens title lot. He also argues Mr Betros places too much emphasis in the variation request on the form of the building proposed rather than the subdivision itself. He concludes: In my opinion the proposal does not minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties as required by objective (a) and the reduction in lot size fails to promote a better outcome for, or from the development. A better outcome for and from the development would be a larger and wider lots that comply with the planning requirements. I do not agree with the cl 4.6 statement that there are sufficient environment planning grounds. The grounds put forward are that the proposal has a high architectural amenity, lack of external impact, complies with the planning controls and exhibits good environmental performance and is not in a heritage conservation area or street/locality that has architectural features that need to be preserved. In my opinion this justification goes to the proposed built form and does not specifically the subdivision aspect of the proposal which must also be found to be acceptable.
Mr Mead also raised concern with the impact of the difference in title of the land that arises from the subdivision if approved. In the Joint Report he states: Different housing types (such as attached dual-occupancy on one title or a subdivided lot) will have different impacts, for example attached dual‑occupancy under one ownership would be more likely to be rented or occupied by an extended family. Accordingly there is a difference in how the development would meet the objectives of the LEP which encourage the provision of housing mix and tenure. Clause 1.2(g) would be better met by upholding the standard.
Mr Betros disagrees with Mr Mead's evidence in relation to tenure of semi-detached dwellings, versus attached dual-occupancies. It is his evidence that it is commonplace for attached dual-occupancies to use other forms of title (such as company title) and for them to be sold separately.
Further to the above, in oral evidence Mr Betros provided a comparison of the numerical compliance of the proposed development with the relevant LEP and DCP controls. On the basis of this analysis he concluded that there is no demonstration that the lot size variation sought would produce a poor environmental outcome for the residents of the proposed development, or the adjoining neighbours and will be consistent with the form of development anticipated by the council's controls. In his evidence he identified that, whilst the variation may not always be appropriate, given the following characteristics it was able to be supported in the circumstances of this case. Those characteristics are: 1. the existing form of development on the adjoining lots, and the provision of fenestration generates no privacy impacts between the properties. 2. The orientation of the lots provides good solar access to the private open space and internal living areas of the dwellings. 3. The variation occurs at the rear yard of the development and does not create non-compliance with the required provision of landscape area or private open space. 4. The development is on the northern side of the road, with shadow cast in part in the road reserve. 5. The subject site is sited below the adjoining properties to the rear, reducing potential privacy impacts. 6. He concluded that the environmental benefits of the additional 2 square metres would be indiscernible to a neighbour or a member of the public or a future resident of the development, or anywhere from the public domain.
In oral evidence, Mr Mead placed greater emphasis on the impact of the increased potential for floor space that would arise from the approval of the sub-division, as the FSR provision under the LEP increases to 0.75:1. Mr Mead argues that such an increase in floor space and density, will effect a strategic land use change that was not envisaged by the controls. His evidence emphasises that the subdivision sought by the applicant will exist beyond the life cycle of the proposed building. The assessment of the variation request requires the consent authority be satisfied the development achieves a better environmental outcome. It was Mr Mead's evidence that that proposed development does not meet this test and that a compliant development would be superior as: 1. It would be more likely to meet the objectives of the DCP lot frontage control. 2. Have greater quality of open space and landscape area at the rear of the lot.
In support of the variation Mr Betros's evidence is the proposal achieves a better environmental outcome than a compliant development for the following reasons: 1. it provides for Torrens title subdivision and unfettered lots which is a preferred outcome over company title; 2. provides for housing diversity and affordability in the precinct; 3. has no amenity impact due to the orientation of the lots created; 4. mandating compliance, and requiring the site to be developed as an attached dual occupancy, would be a significant underdevelopment of the land; 5. the development has a particular circumstances that facilitate the acceptability of the required variation including the existing lot size is generated by the skewed rear boundary which is a paper variation that is not readily perceivable; 6. the lots are oriented north south which is facilitates good solar amenity; and finally; 7. the proposed lot size will allow for a building form that is consistent with that seen in the vicinity.
Mr Johnson submits that the development achieves the consistency of streetscape and building mass and void. It is his submission that such a rhythm is blind to the underlying title of the land.
In submissions Mr Patterson presses that, the consideration of the variation to lot size is hand in hand with the consideration of lot width, and that this conclusion is supported by reference to the director of planning's report (Exhibit 5) which reviewed dual occupancy development. At p 11 the report states: It is clear that both the minimum frontage together with allotment size are key elements for the subdivision of land. The minimum frontage resulting from subdivision is a key element in maintaining or changing the subdivision pattern and thus, the streetscape.
Mr Patterson argues that the cl 4.6 variation request prepared by Mr Betros relies, in part, on establishing that compliance is unreasonable and unnecessary by stating that the variation does not compromise the ability to comply with the DCP. It is Mr Patterson's submission that this is incorrect as a subdivision inherently relies on a variation to the lot with control and DCP. Equally, he argues that, Mr Betros' statement that the development is consistent with the pattern, shape and orientation of the allotment and development, currently found in Windsor Street is not supported by the evidence of Mr Mead.
In closing, Mr Patterson provided to the Court the decision of Pearson C and O'Neill C Vescio v Many Council, [2012] NSWLEC 1098, where at para 58 they noted: We accept that the difference in title if the subdivision is improved, would not change the built form approved in the townhouses appeal and would not be discernible from any public place. However, we agree with Mr Stray, that retaining a single allotment would assist in ensuring that the built form remained an integral whole. In Brendan Howell v City of Canada Bay, [2005] NSWLEC 335, Commissioner Watts commented in the context of an application for the Torrens title subdivision of an attached dual occupancy development, 32 also one could look at the planning consequences of an un-subdivided attached dual occupancy, with one where each of the proposed new dwellings in the attached dual occupancy are situated on a separate Torrens title lot. In the first instance, the ownership would be likely to remain in the hands of a single entity and in the second, each dwelling in the dual occupancy might be owned by a single entity. In the first is likely that the physical form of the two dwellings in the attached dual occupancy would remain as an integrated whole as proposed and thus appear more like a single dwelling in the street and fit with the desired future character. In the second instance, each individual owner might seek to individualise their dwelling, so that each dwelling would appear different and the development complex not as an integrated whole. Thus, there is potential for different planning outcomes in each case, as a result of subdivision.
In reply, Mr Johnson submits that the proposed condition of the applicant (condition 63A), has the effect of tying the subdivision to a specific form of development that, on the evidence of Mr Betros, provides a compatible rhythm of solid and void in the streetscape. The consideration of future applications and how that affects the future built form, he submits, is a matter that should be given little weight in the consideration of the acceptability of the variation request.
In closing the representatives of both parties made submissions in relation to the relevance of precedence. It is agreed that, properly understood, the potential for an approval to establish a precedent for future decisions is not an irrelevant consideration, (Preston CJ in Bellenger v Randwick City Council [2017] NSWLEC 1 citing Goldin v Minister for Transport (2002) 121 LGERA 101). The preconditions to precent being relevant to the Court are that; 1. The development is objectionable in itself; and 2. There is sufficient probability of a further application of a like kind; (Goldin at 28 and 34).
Mr Johnson submits that firstly, on the basis of the evidence of Mr Betros, the development is not objectionable and secondly, development proposed for subdivision may not be in a similar form as this development seeks concurrent approval for the built form. Thirdly, he submits that there is not sufficient probability of further inappropriate application, he relies on Mr Betros's evidence from the Joint Report as follows: I am of the opinion that each development would have its own context and particular set of circumstances. Any future applications would need to be considered on a case by case basis which is consistent with the comments contained within the issues paper and the provisions of cl 4.6 of the LEP.
In the alternative, Mr Patterson submits that it is the agreed evidence of the planners that, the approval of the application would have a precedential effect. He refers to table 1 in the applicant's statement of facts and contention in reply, which identifies proximate lots of similar lot size to that of the current application. He relies on the evidence of Mr Mead as follows: In my opinion approval of the proposed subdivision and support for the applicant's cl 4.6 variation statement, would create an undesirable precedent in the locality.
Mr Patterson argues that based on the applicant's analysis of the lot sizes in the locality there are five other allotments in close proximity to the site, (21, 23, 24, 25, 27), which have lot sizes between 756 and 795 square metres, and similar width. Given the apparent value incentives for attached dwellings on separate title, it is highly likely that similar subdivision into the proposal would follow on these lots. In addition, the attached dual occupancy at number 29 is on 765 square metres of land and would also be a candidate for subdivision. Were this list of allotments subdivided, it is Mr Mead's view, that the pressure would then be placed on other small allotments in the locality, as a different pattern of subdivision particularly lot width, would have emerged. The housing type is also different and has implications for council's overall housing strategy. Furthermore, such a pattern of subdivision being replicated in that locality would also benefit from the increased FSR available to the subdivided lots, (of 0.75 to 1 versus 0.5 to 1) which would have a profound impact on the built form character of the localities. Examples of this would be elongated building forms less landscaping front setbacks, reduced setbacks and so on.

Findings

Wehbe v Pittwater Council (2007) NSWLEC 827 at 44 to 48, detailed a number of approaches that may establish compliance with the development standard is unreasonable, or unnecessary, for the purposes of cl 4.6 3(a). Namely, that the objectives of the standard are achieved notwithstanding non-compliance with the standard, [Wehbe test 1]. The underlying objective of the purpose of the standard is not relevant to the development, [Wehbe test 2]; that the objective would be thwarted is compliance was required, [Wehbe test 3]; that the development has virtually been abandoned or destroyed by council's own action in departing from the standard, [Wehbe test 4]; or that, the zoning of the land is unreasonable or inappropriate.
Having reviewed the written request, I am satisfied that it is adequately demonstrates the first test in Wehbe, that the objective of the development standard are achieved notwithstanding non-compliance with the standard. Therefore, I am satisfied that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case. I have made this finding on the basis of the following; 1. I am satisfied that whilst at a numerical level the resulting lots are less than the standard, I conclude that the variation is sufficiently minor to be indiscernible from a compliant lot in terms of streetscape and the pattern of development and subdivision. 2. As required by the objectives of cl 4.1 I am satisfied that there is no evidence of a likely adverse impact from this subdivision on the amenity of neighbouring properties. 3. Further, I accept the evidence of the planners that, there is no requirement for a specific lot size to accommodate special features on the site. 4. Finally, I conclude that the lot size is appropriate to accommodate the development that it suitable for its purpose. Therefore I am satisfied the compliance with the standard is unreasonable or unnecessary in the circumstances of this case.
I accept the evidence of Mr Betros and his reasoning that the development provides a better environmental outcome. In particular, I am satisfied in this regard given the amenity of adjoining properties, or future residents, are not impacted by the variation; and I concur that the variation of the control to allow Torrens title subdivision will increase the diversity of housing stock in the precinct and represents an efficient use of land. I am satisfied therefore, the development is consistent with the aim of the LEP 2012, namely LEP aim (c) and (g).
For these reasons and pursuant to cl 4.6 4A (2) I find the proposed development is consistent with the objectives of the lot size standard. In forming this conclusion I note that, a consideration of consistency with the objectives of the standard as required under cl 4.6 4A (2), and a determination that non-compliance with the standard would be in the public interest, is different to the consideration of achievement of the objectives of the standard under cl 4.6 3A where the applicant is required to demonstrate the objectives are achieved despite non-compliance, see Moskovich v Waverley Council [2016] NSWLEC 1015 at 54.
Having regard to the location of the site and the adjacent subdivision pattern, I am also satisfied there are sufficient environmental planning grounds to justify contravening development standard and I accept the evidence of Mr Betros utilised in the proceedings to support this conclusion.
In regard to the second test, my findings in relation to the first result in the conclusion that the proposed development would be in the public interest because it is consistent with the objectives of minimum lot size.
Having regard to the objectives of the R2 zone and the evidence provided, I am also satisfied that the subdivision of land, as proposed, would provide for the housing needs of the community within a low density residential environment. The density of the development proposed is consistent with, and compatible, with the character of the locality. While the design of the dwellings as proposed is not a relevant consideration for the cl 4.6, I am satisfied it has been demonstrated that it addresses the desirable elements of the existing streetscape and built form and would contribute to the desired future character of the area without adverse impact to the amenity of existing residents. There is no economic evidence before me to assess affordability of the proposal and similarly no evidence to suggest that the development is contrary to the objective of income housing affordability. For these reasons, I am satisfied the proposed subdivision would be consistent with the R2 zone objectives.
Finally, as required by cl 4.6 5, I am satisfied the variation sought does not raise matters of significance for State or regional planning that will warrant refusal of the variation request.
Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons I am satisfied under cl 4.6(4) and consequently there is power to grant consent to the development application, subject to further merit assessment.

Is the Application worthy of Approval?

Clause 2.1 of the DCP provides that the minimum frontage width for allotments resulting from the subdivision of land within R2 (low density residential), for the purposes of dwelling houses and semidetached dwelling is 12 metres. The development proposes two allotments, each with a lot width of 7.9.25 metres, which represents a variation to the minimum frontage by 34% or 4.075 metres.
The first of the two objectives for the lot width control is to ensure land subdivision respects the predominant subdivision and development pattern of the locality. The second objective of the lot width control is to ensure adequate width and configuration to deliver suitable building design and maintain the amenity of joining properties. The minimum frontage width for allotment resulting from land within the R2 zone for the purposes of dwelling houses is 12 metres.
Mr Betros argues that, the DCP provision for lot width can be varied in the circumstances as the proposed lot widths will be compatible with the most similar, and proximate, nature of development at 26 Windsor Street. Whilst the frontages will also be consistent with the increase in pattern of development, being attached dual occupancies or semidetached housing. The constructed semidetached dwellings and attached dual occupancies, in his view, have the same appearance as being a separate/divided in regard to entries, letterbox, garages etcetera. It is his view that it is also likely that out dated single dwelling stock will be redeveloped for either attached dual occupancy development or semidetached housing. It is his evidence that the proposed lot frontage will therefore be compatible with both the existing, and desired future character.
The first objective of the control is, to respect not be consistent with lot frontages. Mr Betros' evidence is in this regard the lot frontages and the associated rectilinear north south oriented lots with 1.2 metre side setbacks will be respectful to the character of subdivision and the lot frontages now and in the future. He concludes that the proposed lot widths are sufficient to deliver suitable building design, whilst maintaining the amenity of neighbouring properties. It is his evidence that the building design is compatible with the constructed development at 62 Windsor Street, and will have similar if not lesser impacts than that proposed. He concludes that, there are no adverse or incompatible streetscape or amenity impacts associated with the proposed lot frontage. It is Mr Betros' conclusion that the proposed lot width satisfy the objectives of the DCP which is consistent with the provisions of s 79C (3)(a) of the Act which states: If a DCP contains provisions that relate to the development that is the subject of a development application, the consent authority is to be flexible in applying those provisions and allow reasonable alternatives that achieve the objects of those standards"
In the alternative, Mr Mead's evidence is that the council has deliberately arrived at a preferred ratio of lot area to width, and these controls must be considered in conjunction with each other. It is his evidence the proposal does not meet either control. To support his conclusion he refers to the table provided by the applicant in the statement of facts and contentions in reply. Of the allotments included in the analysis it is Mr Mead's opinion that a fair sample, other than excluding the properties in Daunt Avenue, shows that the exception is 26 Windsor Street, the narrowest lot width is 14.8 metres. Every other tabulated lot width meets the 12 metre standard except for 26 and 26A. He notes in his evidence that, these lots meet the minimum lot area requirement.
It is Mr Mead's evidence that the objective of the DCP requirement is to respect both the predominant subdivision, and development pattern, of the locality. Appreciation of the predominant subdivision pattern in his evidence must stem from the table provided by the applicant. It is his opinion that the proposed 7.925 metre wide allotments vary substantially from the predominant pattern, (which is actually characterised by lots greater than the DCP minimum) and he argues that the current proposal cannot be said to respect the predominant pattern. He concludes that an assessment against the objectives should not be limited to assessment of the proposed built form but rather, the pattern of subdivision itself. Whilst the built form is proposed concurrently in this application, the subdivision proposed is likely to remain long after the built form is replaced, with a different built form in the future.
It is Mr Mead's evidence that a minimum 12 metre frontage allotment is capable of accommodating a dwelling house, and that this was considering council's review. Mr Mead states that, the proposed lot width results in an elongated form of building that extends further into the site than the adjoining buildings, lacks articulation particularly to the southern side elevation. It is his view that the opportunities for landscaping in the front setback are also limited by the lot width proposed. It is his evidence that these are symptoms of the lot width, and also the density proposed, being more than that envisaged by the controls. Mr Mead concludes the proposal does not meet the second objective in relation to lot width.
In oral evidence, counsel took the experts to the interpretation of respect, in the context of the objective of the lot width control (Clause 2.1). Namely, to ensure that land subdivision respects the predominant subdivision and development pattern of the locality. Mr Patterson submitted that the experts should make reference to the Macquarie Dictionary definition, as has been the Court's practice in seeking to define terms. The relevant definition is extracted below:

respect noun 1. esteem or deferential regard felt or shown. 2. the condition of being esteemed or honoured. 3. (plural) deferential, respectful, or friendly compliments, as paid by making a call on a person or otherwise: to pay one's respects. 4. consideration or regard, as to something that might influence a choice. 5. a particular, detail, or point: in that respect; in one respect; in any respect. 6. Obsolete consideration. -verb (t) 7. to hold in esteem or honour: to respect one's elders. 8. to show esteem, regard, or consideration for: to respect someone's wishes. 9. to treat with consideration; refrain from interfering with: to respect a person's privacy. 10. Obsolete to relate or have reference to. -phrase 11. in respect of (or to), in relation or reference to: the council's policy in respect of garbage collection. 12. with respect to, in relation or reference to: inquiries with respect to a route.

It was Mr Betros' evidence that, in the context of this objective, "respect" should be interpreted as having regard to and it is not in his view, to be taken to mean to match or to be exactly the same as.
Mr Mead's evidence was that, interpreting the objectives of the control, the Court should adopt the definition of respect as esteem or to be treated with consideration.
A key distinction in the evidence of the expert planners is whether variation to lot width would be perceivable in the streetscape to the casual observer. Mr Betros' evidence is that a casual observer would not distinguish between the lot width proposed, and that that already exist in the street, in relation to the attached dual occupancies as the observer reads the relationship between building form and void. It is his evidence that the rhythm of built form to space in the vicinity of the subject site, is attached dwellings and big houses, both of which are consistent with that proposed on the current lot. In the alternative, Mr Mead argues that the lot width evidence provided by the applicant in the statement of facts and contentions in reply at table 1, clearly indicates how discordant the proposed lot frontage will be in the vicinity.

Findings

The relevant provisions of DCP 2012 are a mandatory consideration under s 79C (1)(a)(2) of the Act. Its provisions are a fundamental element in or a focal point to the decision making process but are not determinative, (see Zhang v Canterbury City Council [2001] NSWCA 167), however the introduction of the provisions in s 79C (3)(a) have mandated a more flexible approach to matters the subject of dispute between the parties. As noted by Moore SC in Trinvass Pty Limited v Council of the City of Sydney [2015] NSWLEC 151 at 68, s 79C (3)(a)(b) of the Act requires flexibility in applications of the provisions of a DCP. The consent authority is required to determine where the alternative solution is capable of meeting the object of controls without compliance with a relative standard.
The relevant objectives require the Court to be satisfied that the variation proposed by the applicant respects the predominant subdivision and development pattern; and would deliver a suitable building design and protect the amenity of neighbouring properties. The experts agree that the proposed development does not create any amenity impacts for neighbouring properties. Council argues that such impacts may arise from future applications given the development does not achieve the maximum FSR. I am satisfied that any merit assessment of a future application under the relevant planning controls would consider any impacts on neighbours and that at this time, there is no evidence that supports the conclusion that a variation to lot width creates an inherent impact in this regard. There is no contention from the Council that the lot width proposed will fail to deliver an appropriate building design, or that the design proposed is unsuitable or unsatisfactory.
In relation to the first objective in the context of the provision, I find the most relevant interpretation of respect is, (4) consideration or regard as to something that may influence a choice, and (10) to have reference to. The DCP provides an explanation of lot frontage control as follows, the frontage control seeks to ensure suitable subdivision configuration which in turn will enable dwellings of adequate dimensions, configuration and amenity performance. It also functions to ensure suitable space for open space, and visually acceptable parking and access arrangements. The lot width controls relates to the performance of the subsequent built form.
Properly considered, streetscape is perceived as an ambulatory experience. With a benefit of the onsite view, I accept the evidence of Mr Betros that a casual observer will not perceive a difference in character or streetscape resulting from the variation. I find that the lot width variation respects the subdivision and development pattern of the locality and a variation to the control is warranted in the circumstances of the case.
In reference to the Director of Planning's report (Exhibit 5), I am not satisfied that the intent of the council was to rigidly apply either the 400 square metre lot size control, or the lot frontage control throughout the Randwick Local Government Area, in a manner that us blind to the specific site characteristics relevant to the application. This conclusion is supported by the assessment undertaken by the Council in the application at 26 Windsor Street for semidetached dwellings with a resultant lot width of 7.925 m². That assessment concluded: the proposed development demonstrates that the frontages can accommodate a suitably designed and compliant development, having regard to the DCP controls and the size and configurations of the proposed lots are not inconsistent with examples on other sites within the vicinity. My conclusion is similar.
In determining this matter, I have carefully considered the evidence in the objections to the submissions and undertaken a detailed view. Having carefully considered the joint expert report and final submissions, I am satisfied in my s79C evaluation that the amended proposal warrants approval. In undertaking the assessment of the application I have considered the potential precedent effect of the decision, but I consider it is not sufficient to warrant refusal of the application on the basis of my findings on the merit of the application, and the conclusion therefore the development is not objectionable in and of itself. (Goldin v Minister for Transport).
Orders:
The orders of the Court are: 1. The objection pursuant to cl 4.6 of the Randwick Local Environmental Plan 2012 is upheld, 2. The appeal is upheld; 3. Consent is granted to development application number DA/828/2016 for the demolition of existing structures. Torrens title subdivision into two lots. Construction of two by two storey semidetached dwellings with partial basement level car parking, landscaping and associated works, (variation to lot sizes) at lot 28 DP36113 22 Windsor Street, Matraville; subject to conditions contained in Exhibit 4 and the following additional operational condition; 63A a subdivision certificate for the subdivision of land approved by this consent must not be issued until after construction of the two buildings approved under the consent has reached lockup stage, which includes the construction of floors, walls, ceilings, roofs, and with all external doors and windows in place, but before any kitchens and bathrooms have been installed in those buildings. The lots in the approved subdivision must be created after construction of the two buildings approved under this consent has reached lockup stage but before any kitchens and bathrooms being installed in those buildings. 1. The exhibits will be returned with the exception of Exhibit 2, 4, A and B, and the Applicant's Class 1 application. ……………. D M Dickson Commissioner of the Court 34261.17 (C) (1.75 MB, pdf)

Amendments 16 June 2017 - Administrative Error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2017

(2002) 121 LGERA 101

At a glance

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Judgment (13 paragraphs)

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Cases Cited (9)

Cited By (1)