Goldberg v Waverley Council

Floor Space Ratio Development Standard

1. The maximum floor space ratio applicable to the proposed development on the site is 0.5:1 (See WLEP cl 4.5A(c)). The Floor Space Ratio of buildings on a site is defined in cl 4.5(2) of WLEP as "the ratio of the gross area of all buildings within the site to the site area".
2. "Site area" is taken to be: if the proposed development is to be carried out on only one lot, the area of that lot: see cl 4.5(3).
3. In this case "the site" is only one possible lot: viz lot A, except relevantly, sub-clause 4.5(4)(a) excludes from "site area" land on which proposed development is prohibited under any law.
4. In this case, the Council submits there is ambiguity as to the Eastern boundary of lot A. The base sketch for DP102084 is the subdivision plan registered as part of Real Property Act 1900 dealing D251625. The Eastern boundary in that sketch is depicted as a slightly wavy line without any bearing or distance but with the words "edge of cliff" along its length and beyond that: "Pacific Ocean". There is no surveyor's certificate on that sketch.
5. The next emanation of the sketch is the official registered Real Property Act Deposited Plan 102084. This is reproduced in "exhibit C". The DP was signed and certified by surveyor Larcombe on 3/7/1943 under the Surveyors Act 1893 with the words "I certify that this plan has been compiled from the information in deposited plan 7044 and is correct". There is also a signed endorsement on the plan which stated "boundaries defined by survey - there were no improvements on or adjacent to subdivision boundaries at date of survey". The Eastern boundary of lot A is indicated as a straight line of 83 feet 6 and 1/4 inches (25.45715m) with a bearing of 178 degrees 28 minutes. The DP shows the area of lot A as "26 perches" and includes a conversion table of that area to metres which indicates 657.6 m2. The maximum FSR at 0.5:1 therefore is 328.8m2. The applicant engaged Eric Scerri and associates, surveyors, to provide site survey information. An extract of his sketch is reproduced in the statements of environmental effects (page 3). This sketch is not to scale but is labelled "lot A DP 102084 (area 657.9m2(sic))" and is edged red. The Eastern boundary is marked "edge of cliff" and is depicted as a straight line of 25.47m with the Pacific Ocean beyond to the east. The steel mesh fence seen on the view is shown some metres to the west of the red-"Eastern boundary" but not parallel to it. The area between the two lines is marked "overgrown vegetation (inaccessible)".
6. Mr Scerri's sketch fairly clearly adopts the information in DP 102084 as to the Eastern boundary (subject to a small discrepancy in the conversion of the length of it to metres.)
7. The s149 certificate in exhibit C states that the land in lot A DP 102084 is zoned R2 under WLEP and no other zone.
8. Mr Scerri was also requested to carry out a "boundary survey" of the Eastern boundary reproduced in figure 3 p13 of the joint report of the Town Planners. This identified two cliff edges: the Edge of Cliff Upper which is at the approximate level of the remained of the site and the Edge of Cliff Lower which is land well below the upper cliff edge. Both of these lines are well beyond the line of the existing metal fence across the site. The two cliff edge lines take account of the psychical characteristics of the cliff down to the waters of the ocean below the site. Arial photographs of the site have been overlain with red lines indicating the extent of the site area beyond the existing metal fence to the Eastern boundary and the extent of the site area beyond the edge of the upper cliff to the eastern boundary. This shows that a part of the site area is in air space. Any land beyond the upper cliff edge is sheer cliff face or the bottom of the cliff at or close to ocean level. The Council notes that the broadly printed Eastern boundary line of the R2 low density residential zone in the maps under WLEP at the property is based on cadastral information supplied by NSW Land and Property Information. From this the land zoned R2 measures 610m2 in area and the Eastern extremity of the site is beyond the R2 zone boundary line beyond which the land is zoned within the area E2 Environmental Conservation. The Council's ultimate submission is that cl 4.5(4)(a) of WLEP 2012 excludes from the calculation of site area "land on which the proposed development is prohibited" and that Dual Occupancy development is prohibited in the E2 zone.
9. The amended plans have reduced the gross floor area (GFA) to 329m2 (the amended drawings show the ground floor has a GFA of 170m2 and first floor has a GFA of 159m2 and no GFA in the basement). Based on the Council's calculation the site area is 610m2 and the proposed FSR is 0.538:1. This is said to represent a GFA exceedance of about 23m2, a departure of 3.8%: see Mr S McDonald's evidence on pages 12-16 of the joint report of the Town Planners (Exhibit 3).
10. Mr Patterson for the Council submitted that in these circumstances I must determine whether the applicant's cl 4.6 WLEP request to vary the development standard in cl 4.4 of WLEP for floor space ratio should be granted.

Consideration: FSR

1. Clause 4.5 as it applies to the site in this case provides that the "site area is taken to be the area of the lot" where there is a single lot. In this case that area is the area contended for by the applicant, namely 657.9m2. This is based on registered NSW Land and Property information documents of the title. Clause 4.5(4) WLEP "Exclusions from Site Area" include any land on which development is not permitted to be carried out by WLEP. The Council argues that to the extent that the area of the site includes land within the E2 zone under WLEP the Council has sought to establish, based on cadastral information supplied by NSW Land and Property Information which is reproduced in the joint report of the planners by Mr McDonald. Whilst precision of measurement is difficult to achieve, I am persuaded that I should accept the Council's contention that part of the site is zoned E2.
2. The applicant has been fairly given the opportunity to respond to the shortage of site area and the fact that the FSR exceeds 0.5:1 on the presently amended plans. It did so by relying on an amended cl 4.6 WLEP request to vary the FSR development standard to accommodate the relatively small excess in site area. The amended cl 4.6 WLEP request was filed on [insert] 2017. I have given the final version the Exhibit number [insert]. I have therefore carefully considered the written request under cl 4.6 prepared by GSA Planning (Mr George Karavanas) on behalf of the applicant which seeks to justify the contravention of the FSR standard in cl 4.6(3)(a) and (b).
3. I am satisfied, except in one respect, that 1. (i) The applicant's written request has adequately addressed the matters required to be demonstrated by sub-clause 4.6(3) of WLEP and 1. (ii) The proposed development will be in the public interest because it is consistent with the objective of the particular standard (FSR) and the objectives for development within the zone in which the development is proposed to be carried out, and 1. The concurrence of the Director-General may be taken to have been obtained. The exception is the assertion by Mr Karavanas that the FSR standard was "abandoned" by the Council by reason of its conduct in granting other development consents in the past. The assertion to that effect in the cl 4.6 request does not affect the remainder of the reasoning in the request but I am not satisfied on the available evidence that the Council had abandoned the FSR standard in WLEP.
4. The above approach is consistent with the approach of "indirect" satisfaction of a cl 4.6 request referred to by Preston CJ in Randwick City Council v Micaul Holdings Pty Ltd (2016) NSWLEC 7, at (38) and (39). Accordingly, if I am satisfied that the request has adequately addressed the matters required to be demonstrated by subclause 4.6(3), as I am, and if the proposed development will be in the Public Interest because it is consistent with the objectives of the particular standards and objectives for development within the R2 low density residential zone under WLEP, as I find it is, then the requirements of sub-clauses 4.6(3) and (4)(a) are satisfied. As to sub-clause 4.6(4)(b), it is common ground that the concurrence of the Secretary was not required for the contravention because of cl 64 of the Environmental Planning and Assessment Regulation, 2000 and the issue of a Departmental Circular stating that concurrence with respect cl 4.6 could be assumed: cf Lane Cove Council v Orca Partners (No.2 ) [2015]NSWLEC 52 at [268], [269] and [273].

Whether the negative easement can be released, varied or modified by the Court

1. The terms of this easement are set out in [2] above.
2. The right created is, relevantly, "to insist that not more than one main building… shall hereafter be erected on lot A." the existence of the negative easement is not disputed by the parties. The question which arises is whether the Court in considering whether to grant the development consent has the power to release vary or modify the negative easement with respect to lot A and/or whether the Court has jurisdiction and power to exercise the decision making power of the Council given under the terms of the easement to determine not to "insist that not more than one main dwelling is erected on the site."
3. In the present Class 1 appeal, the Court, as consent authority for the purposes of the EP&A Act, has all the powers set out in s.39 of the Land and Environment Court Act 1979 (the Court Act).
4. A relevant power in this case is that contained in subsection 39(2) of the Court Act, which relevantly provides: 39(2) in addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body who's decision is the subject of the appeal had in respect of the matter the subject of the appeal.
5. "Functions" in s.39 is defined in s.4(1) of the Court Act to include powers, authorities and duties.
6. The subject matter of the present appeal is the determination of the development application for the proposed dual occupancy development on the site.
7. The relevant powers vested in the Council by the negative easement are twofold: The express right in the terms of the negative easement for Waverley Council to exercise the right and power in the negative easement to "insist", or it's alternative, to "not insist" that not more than one main dwelling is erected on the site; and/or (b) the function, power and discretion to grant conditional development consent or to refuse consent under s.80(1) EP&A Act to the DA before the Court, that is to say, grant conditional consent for two "dwellings" on the land and for demolition of the one main dwelling existing on the site.
8. Having regard to the fact that WLEP currently permits dual occupancy development on the land, the development is permissible with development consent.
9. It would not therefore be appropriate to determine to grant conditional development consent for the purposes of the EP&A Act, and "insist" that only one main dwelling may be erected on the site. Rather, I would determine to grant consent and to not insist that only one main dwelling may be erected on the site.
10. In making that determination the jurisdictional basis is the Class 1 appeal power to determine conditionally or otherwise to grant or refuse development consent under s.80(1) of the EP&A Act.
11. The applicant referred to the decision of Commissioner Dickson in D'Alterio v Newcastle City Council [2017] NSWLEC1058 at (54)-(73) in which the power in s.39 (2) of the L&E Court Act was exercised with respect to a restriction on user in a registered subdivision instrument under section 88B of the Conveyancing Act. The order that was made was a determination to vary the s.88B restriction on use. One alternative open to me is to exercise the right and power to not insist that not more than one dwelling may be erected on the site.
12. To the extent that it may be held that there was any limitation on proceeding in that manner, I would have been minded to determine to exercise the Council's power in the negative covenant to vary or modify it by permitting the development application to proceed thereby enabling two "main dwellings" on the land.

Is development consent necessary with respect to the land comprising the servient tenement of the Right-of-Way (lot B)?

1. As mentioned earlier, the land the subject of the development application was the site (lot A) and did not include the land burdened by the ROW in lot B. No development is proposed on the ROW land.
2. The terms of the ROW are set out in [2] above and are as ample for vehicular and/or pedestrian access as could be drafted over the strip of land for the purposes of a driveway serving to give access to lot A.
3. The likely future use of the ROW land by vehicles and person accessing lot A is limited to the strip of land adjoining the Western boundary of lot A.
4. The unanimous decision of the High Court of Australia in North Sydney Council v Ligon 302 Pty Ltd (Ligon) [1996] HCA 20; (1996) 185 CLR 470 held (at [7]) that the EP&A Act was concerned with the environment and amenities of various areas of the state, and that statutory powers to control planning of those areas are not qualified or affected by private rights excepting so far as the Act fastens on the holders of interests in land; and that it was not self-evident that a relationship for the purposes of s.77(1)(b) [the current equivalent provision for which is s.78A(1) & (9) of the EP&A Act coupled with cl. 49(1) of the Environmental Planning and Assessment Regulation 2000 (Regulation)] between a development application for consent to erect a building on one parcel of land and an adjoining parcel of land is established by the need for consent to a development on the adjoining parcel.
5. The High Court held in relation to the former s.77(1(b)) that the context revealed the meaning of "relates" in that paragraph. It noted that the prohibition in the former s.76(2) of the EP&A Act from carrying out development which would otherwise be prohibited by s.76(2) refers to the carrying out of a development on land to which a provision in an environmental planning instrument applies. Such a provision applies to particular parcels of land and "development" can be carried out only on a particular parcel. Thus the prohibition is against the carrying out of a specific development on a particular parcel. When a development application is made for consent to a specified development, the land to which the application "relates" must therefore be the land on which the specified development is proposed to be carried out.
6. The Court (at [9]) stated that in some cases a development carried out on one parcel of land may entail a development on an adjoining parcel or on another parcel in the locality. In such a situation, s.90(1)(h) comes into play. The modern equivalent of the former section 90 of the EP&A Act is s.79C.
7. Section 90(1)(h) of the EP&A Act was concerned with: "the relationship of the development to development on adjoining land in the locality"; Also relevant are: s. 90(1)(i) which is: "whether the proposed means of entrance to and exit from that development… are adequate (as well as loading, manoeuvring and parking of vehicles within the development or on the adjoining land are adequate), and (j) the amount of traffic likely to be generated by the development in relation to the capacity of the road system in the locality and a probable effect of that traffic on the movement of traffic on that road system.
8. These considerations under the repealed provisions raised considerations which are undoubtedly captured by the more generalised list of considerations under the current s.79(C) of the EP&A Act. The listed matters for consideration under s.79(C(1)) include: (b) The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) The suitability of the site for the development, (d) Any submissions made in accordance with this act or regulations, (e) The public interest.
9. The High Court further held (at [11]) - "Although related developments on adjoining parcels of land may each require consent before they are carried out, each development is on it's own parcel of land and any necessary consents must be sought by a DA that "relates" to that parcel-not to the adjoining parcel".
10. The High Court provided the rationale for this in paragraph [12] which cautioned that "if a DA were held to "relate to" "other land in the locality" merely because a development on the other land related to the development the subject of the application, each owner of other land would possess a power to prevent the subject development (emphasis added). The power would be exercised by denying consent to the application. A relationship between developments might be established merely by use of the other land in some manner related to the development proposed on the subject land. The "use" of land, in any way, falls within the wide definition of "development" contained in s.4(1) which includes (a) the erection of a building on that land… and (c) the use of that land or of a building or work on that land: see [12].
11. If any "use" of "other land in the locality" were related to a proposed development and if that relationship were held automatically to establish a relationship of the DA to the other land for the purposes of s.77(1)(b)[now cl 46(1) of the Regulation] the owner of that other land would have the power to veto that development.
12. The High Court held that existing uses constitute development but do not require consent when they are covered by exempting provisions. It noted that the EP&A Act contained provisions dispensing with the need for consent to some existing uses. In the present case the historic use of the ROW commenced on or about 13/12/1943 and would have been a lawful use of the land in the ROW. I am prepared to accept that the use continued up until the making of WLEP in 2012. On this basis it is a continuing use within s.109 of the EP&A Act. This provides relevantly: 109(1) nothing in an environmental planning instrument operates so as to require consent to be obtained under this act for the continuance of a use of a building, work, or land for a lawful purpose for which it was being used immediately before the coming into force or the instrument or so as to prevent the continuance of that use except with consent under this act being obtained. The exceptions to this position are set out in subsection 109(2). Subsection 109(2)(c) is the only relevant exception and provides, "nothing in subsection (1) authorises any enlargement or expansion or intensification of the use there in mentioned. The High Court emphasised that in a case such as the present, the question of the need for development consent for a possible intensification of the use of the right of way land is it's prospective use and that this can only arise if actual use of the right of way occurs after the construction of the proposed development on the dominant tenement (in this case the proposed dual occupancy development) cf Ligon at [12]-[18]. The only need for development consent for the prospective use of the ROW would be if the actual use of it occurs after the construction of the proposed dual occupancy development on lot A and the grant of an occupation certificate for the building and there is an "intensification" of the pre-existing use that can be so described.
13. In Ligon a somewhat different use of a ROW was proposed. This also would have been the position in the case of Huntington & Macgillivray v Hurstville City Council [2004] NSWLEC694; (2004)139LGRA84(Pain J), a decision referred to by Mr Patterson in the present case. The decision of Pain J is distinguishable on its facts from the present case and was an interlocutory decision which was revised to some extent on further consideration of the facts in subsequent hearings of the case.
14. At the conclusion at the hearing of the present case no actual use of the right of way (other than its historical use) had commenced so that no question of actual use has arisen. There is no DA for any use of the ROW land for the purposes of a dual occupancy development on lot A. As in Ligon, in the present case there can be no observational evidence of the level of use of the ROW with respect to the dual occupancy. In Ligon the High Court held that development consent for the ROW was not and could not be granted for any intensified use of the ROW and that the prospect of intensification of use was only capable of affecting the discretion to grant or refuse Ligon's application for the proposed development on the land to which the "development application related", but that was a different problem.
15. In the present case, I do not consider that the prospective use of the ROW for the purposes and at the intensity of the existing use (no doubt a variable use on a day-to-day basis) would be different or more intensive than the pre-existing use from the point of view of traffic, safety or manoeuvrability, especially as, it is intended to add measures in association with the proposed dual occupancy building to improve these considerations. The only immediately relevant question is whether the heads of consideration to be taken into account under the current s. 79C of the EP&A Act are satisfied.
16. I also do not consider that the proposed dual occupancy in the present case is likely to have an unacceptable environmental impact on either the natural or built environment of the site or any adverse social or economic impacts in the locality and that the site is suitable for the development and that there is no basis for refusal of the development application on account of the matters in s.79C having regard to the amended plans and the proposed agreed conditions of consent. No submission has been made by the Council to the contrary. The historical use of the ROW for the existing development on lot A was lawful under the terms of the ROW and within the ambit of the terms of the ROW. I am not asked to grant development consent for any different use of the ROW because there is no development application for that purpose and neither party submitted that there was any basis in the evidence to consider that there would be an "intensification" of the use of the ROW land by reason of the prospective use of the ROW by the occupants of the proposed dual occupancy development.
17. Whilst it is unnecessary to make a determination based on prospective use, on the evidence in the present case the following observations are relevant:

• The access to the existing dwelling on the site via the ROW is to a garage which is under the roof of the dwelling itself which has opening doors such that it is necessary to stop in the ROW in order to open the garage doors
• Existing arrangements for entry and exit to the existing garage on lot A cannot both be in the forward direction and it is necessary for vehicles to "back" either into or out of the garage by reversing. The proposed dual occupancy can have automatic operation of the gates which would not require a vehicle to stop in the ROW. Further, vehicles can enter the driveway without stopping in the forward direction in order to enter the building to be erected on the site and park vehicles in the designated enclosed parking spaces within the building.
• The proposed dual occupancy development contains a turntable within the building which vehicles must utilise in order to park within the designated parking spaces.
• Only two spaces are to be provided for each of the dual occupancy units.
• There is no possibility with the proposed development for vehicles to park elsewhere on the site. Whereas photographic evidence indicates that as well as vehicles using the garage within the existing dwelling, vehicles have also parked on the frontage setback of the site. By these means there has been space for at least four cars parked in the front setback. The garage, accommodates one vehicle, making a total of five. The Council Town Planner estimated that three outdoor car spaces have been used with the existing dwelling. In my opinion it is probable that there have been four as submitted by Mr Nash for the Applicant. This indicates the current intensity of vehicle use compared to the proposal.
• The amended plans indicate that safety/viewing mirrors are to be installed on the site as well as under conditions of consent. These will substantially improve safety compared to the present situation.
• Under the proposal there will be shorter travel times for vehicles entering the building in order to access the car spaces.
• Parking or stopping on the ROW is not permitted by the terms of the ROW.
• Vehicles going to or from lot A cannot enter the ROW if another vehicle is in transit in the ROW unless that are both traveling in the same direction.
• The maximum distance for a vehicle to transit the ROW for entry or exit of the site is about 12 meters. A vehicle going to or from lot A and traveling at 5kph (1.39 metres per second) would occupy the ROW for less than 20 seconds per transit.
• The ROW is a shared way for pedestrians and vehicles. All that can be said at the present time, before occupation commences, is that the intensity of use and the impacts of future use will be unlikely to have altered by any measurable extent, or will be reduced.
• The capacity of the ROW to accommodate traffic movements will be improved.

1. In these circumstances, there is no requirement for development consent for intensification of use of the ROW because on the balance of probabilities there will be no increase overall in intensity. Neither party has submitted that there has been or there is likely to be an intensification of use or a requirement for development consent. The Council's final position on this issue was that it made no submission against the grant of consent based on the likely future use of the ROW.
2. I am satisfied that the amended plans and the agreed conditions will adequately address the remaining issues and the objections raised by the neighbours and that the proposal is now worthy of conditional development consent.

Conditions

1. The parties have agreed on a suitable set of conditions of consent.

Orders

1. Accordingly, the Court makes the following orders: 1. The Applicant is granted leave to rely on the following amended plans: 1. DA_100 Amendment No 2 dated 30 August 2017; 2. DA_101 Amendment No 2 dated 30 August 2017; 3. DA_102 Amendment No 2 dated 31 August 2017; 4. DA_103 Amendment No 2 dated 31 August 2017; 5. DA_3.00 Amendment No 2 dated 29 August 2017; 6. DA_3.01 Amendment No 2 dated 31 August 2017; 7. 0.04 Amendment No 2 dated 30 August 2017; 8. 0.03 Amendment No 2 dated 31 August 2017; 9. Solar access plan 0.01 dated 04.09.2017; 10. Solar access plan 0.02 dated 01.09.2017; and 11. Detail and Level Survey and Boundary Dimensions by Title dated 31 July 2017. 1. The Applicant is to pay the Respondent's costs in respect of the amended plans pursuant to s 97B of the Environmental Planning and Assessment Act 1979, in the agreed sum of $10,000 within 28 days. 2. The appeal is upheld. 3. The Applicant's variation application under clause 4.6 of the Waverley Local Environmental Plan 2012 in relation to the floor space ratio standard under clause 4.4 of the LEP is upheld. 4. Development consent is granted to DA 561/2016 for the demolition of the existing buildings and erection of a 3 storey attached dual occupancy development on the land situated at 51 Lancaster Road, Dover Heights, subject to the conditions in Annexure "A". 5. Pursuant to s39(2) of the Land and Environment Court Act 1979, in the exercise of the functions and discretions of the Respondent, Waverley Council, under the negative easement dealing number D22280 dated 22 April 1941 registered on title to the land situated at 51 Lancaster Road, Dover Heights: 1. The Court does not insist that not more than one main dwelling or part of one main dwelling be erected on the land; and 2. To avoid doubt, the negative easement is released to enable the carrying out of the subject development in accordance with DA 561/2016 on the conditions in Annexure "A". 3. The Respondent Council is to file the appropriate extinguishment of restrictive covenant form, extinguishing instrument number D22280 with the Land and Property information office within 63 days of judgment in this matter. 1. The Exhibits may be returned with the exception of Exhibits B and K. ……………………………………….. John Maston Acting Commissioner of the Land & Environment Court of NSW 119427.17 Annexure A (C) (324 KB, pdf)

Amendments 07 November 2017 - Clerical 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: 07 November 2017