Hamptons Property Services Pty Ltd v Canterbury-Bankstown Council (No 2)

Cases Cited: Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61
Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22
Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd [2025] NSWLEC 41
Hamptons Property Services Pty Ltd v Canterbury Bankstown Council [2024] NSWLEC 1742
Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Trevenar Pty Ltd v Canterbury Bankstown Council [2022] NSWLEC 1680
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category: Principal judgment

Parties: Hamptons Property Services Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation: Counsel:
P Tomasetti SC (Applicant)
P Bambagiotti (Respondent)
Solicitors:
Corrs Chambers Westgarth (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s): 2023/360433

Publication restriction: No

JUDGMENT

1. COMMISSIONER: I have been given this matter on remitter from the decision of Preston CJ in Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd [2025] NSWLEC 41 (s 56A Appeal) where Shoalhaven City Council (the Council) appealed under s 56A of the Land and Environment Court Act 1979 (LEC Act) against my earlier decision as a Commissioner of the Court, to grant development consent to development application DA-1124/2023 for demolition including tree removal and remediation of land, community title subdivision of land and construction of six dual occupancies, one dwelling house, ancillary driveway, car parking, stormwater infrastructure and landscaping works, and the dedication of land to Council for public open space, and further community title subdivision of 6 dual occupancies at 30 Trevenar Street Ashbury legally identified as Lot 1 in Deposited Plan 566982 (the Site) to be carried out by Hamptons Property Services Pty Ltd.

2. Preston CJ upheld 2 of 4 grounds on appeal and identified the central issue to be compliance with the minimum subdivision lot size development standards that apply to subdivision under the Community Land Development Act 2021 (CLD Act) as set out in both cll 4.1AA(3) and 4.1(5) of the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP). At [55]-[56] Preston CJ notes that:

“55 In the present case, this means that the subdivision under the CLD Act of the six lots on which dual occupancies would be erected needs to comply with both the minimum lot size of 460m2 in cl 4.1AA(3) and the minimum lot size of 300m2 in cl 4.1A(5). The proposed subdivision would not comply with both development standards. As the size of the resulting lots would be 300m2, the subdivision would comply with the development standard in cl 4.1A(5), but not the development standard in cl 4.1AA(3). This non-compliance with cl 4.1AA(3) could only be overcome by making an application for variation of the development standard under cl 4.6 of CBLEP. That was not done but could be done on a remitter of the matter.

56 The Commissioner erred on a question of law in construing cl 4.1A(5) as overriding cl 4.1AA(3). Grounds 2 and 3 are upheld.”

3. On 20 November 2024, I handed down my reasons for judgment in the Class 1 Development Appeal of Hamptons Property Services Pty Ltd v Canterbury Bankstown Council [2024] NSWLEC 1742 (Hamptons Class 1 Appeal) to uphold the appeal and grant consent subject to conditions at Annexure A to that judgment.

4. My decision in the Hamptons Class 1 Appeal is set aside by the s 56A Appeal and the matter is remitted to me to determine the Class 1 Appeal according to law and the reasons given by Preston CJ in the s 56A Appeal. Preston CJ at [82] concludes that:

“82 The Council has established grounds 2 and 3, but not grounds 1 and 4. The appeal should be upheld, the decision and order of the Commissioner set aside and the matter remitted to the Commissioner to be redetermined according to law. On the hearing of the remitted matter, Hamptons may wish to make a written request under cl 4.6 of CBLEP seeking to demonstrate that compliance with the development standard in cl 4.1AA(3) of CBLEP is unreasonable or unnecessary in the circumstances. Such a request was not necessary on the Commissioner’s construction that cl 4.1A overrode cl 4.1AA, but as that construction was erroneous and has been overturned, Hamptons should be given the opportunity to seek a variation of the development standard in cl 4.1AA(3) on the remitter.”

5. The Applicant’s case is that on this remitter, the only matter to be re-determined is the fourth step of the Proposed Development and that if the Court were to determine that the contravention of the minimum subdivision lot size was not justified in the circumstances of this case, then the Applicant seeks a grant of consent to steps 1 to 3. The Respondent did not disagree with that approach.

6. Accordingly, on remitter, the parties rely on all the same evidence from the Hamptons Class 1 Appeal and the exhibit numbers remain unchanged, except Ex L and the additional evidence tendered during the remitted hearing. In relation to Ex L, the Applicant attended to correcting an error or inconsistency identified by the Respondent’s expert, Ms Englund in the Supplementary JER (Ex R) at par 26 where she identified some inconsistencies between proposed lot sizes at the Step 2 subdivision into 9 lots and the lot sizes at the Step 4 subdivision. The Applicant explained that there were some minor but relevant inaccuracies in the Step 2 Plan of Community Subdivision from which I had reproduced in Hamptons Class 1 Appeal at Fig 1 from Ex L dated 3 September 2024. The Applicant tendered a corrected Amended Plan of Community Subdivision prepared by LTS and dated 25 September 2024 to replace Ex L which had the date of 3 September 2024.

7. For completeness, I reproduce at Fig 1 below the proposed Step 2 Proposed Plan of Subdivision (9 lots) with the accurate proposed lot sizes. The proposed Step 4 subdivision lot sizes shown in the Proposed Plan of Subdivision (14 lots) from Ex B at Tab 38 reproduced at Fig 2 in Hamptons Class 1 Appeal remains accurate.

Fig 1: PROPOSED PLAN OF SUBDIVISION (9 lots) dated 25 September 2025 – Ex L

8. The Applicant also relies on a written request dated 4 June 2025 pursuant to cl 4.6 seeking to justify the contravention of the minimum lot size development standard in cl 4.1AA(3) of the CBLEP (Ex P). The parties’ experts, Ms Englund and Ms Hodgkinson prepared a joint expert report (Further Supplementary JER) which was filed on 18 June 2025 (Ex R). The experts set out their agreement at par 7 to 12 of the Further Supplementary JER as follows, however the parties agree that their references to a ‘stage’ in the Proposed Development should be more appropriately and accurately read and understood to be a ‘step’ in the Proposed Development:

“7. KH and RE agree that the development application (DA) sought consent for development to occur at the Site in four stages:

i. Stage One: Demolition of existing structures, clearing & remediation of land,

ii. Stage Two: Community title subdivision of the land into 9 lots, being one (1) community property lot (Lot 1), seven (7) community development lots (Lots 2-8) and one (1) lot to be dedicated to Council (Lot 9),

iii. Stage Three: Construction of civil works, six (6) dual occupancy dwellings and one (1) single dwelling, including ancillary car parking and landscaping works,

iv. Stage Four: Further Community title subdivision of the lots containing dual occupancies, approved at Stage Three (Lots 2, 4-8) so that each dwelling sits on one lot, resulting in one (1) community property lot (Lot 1) and 13 community development lots (Lots 2-14) on the land.

8. KH and RE agree that Lots 2, 3, and 5-14 would be less than the 460m2 minimum lot size for Community Title subdivision as required by cl 4.1AA(3) of the CBLEP.

9. KH and RE agree that Lots 2, 3, and 5-14 comply with the minimum lot size for dual occupancies required by cl 4.1A(5) of 300m2 .

10. KH and RE agree that non-compliance with cl 4.1AA(3) can be varied in accordance with cl 4.6 of the CBLEP.

11. KH and RE agree that, in order to establish whether compliance with the 460m² minimum lot size of clause 4.1AA(3) is unreasonable or unnecessary, the clause 4.6 request relies upon two of the common ways set out in Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe): the first being that the objectives of the standard are achieved despite the contravention proposed, and the second being that the standard has been abandoned.

12. KH and RE also agree that while the clause 4.6 request relies upon two of the common ways set out in Wehbe, only one way must be satisfied for a clause 4.6 request to establish whether compliance is unreasonable or unnecessary with a development standard.”

9. The experts however disagree as to whether the provisions of cl 4.6 of the CBLEP are satisfied.

10. The parties have provided written submissions in the remitted Class 1 appeal.

11. As the whole decision is set aside, I adopt the reasons from Hamptons Property Services Pty Ltd v Canterbury Bankstown Council [2024] NSWLEC 1742 in relation to all the other merit and jurisdictional findings. This judgment is to be read in conjunction with my earlier decision. However, insofar as my earlier judgment addresses Contention 1 of the Amended Statement of Facts and Contentions (ASOFAC) Ex 1, namely compliance with the minimum subdivision lot size development standard in, I set out my reasons why I have now formed the requisite state of satisfaction pursuant to cl 4.6 of the CBLEP that the Applicant’s written request seeking to justify the contravention of the development standard in cl 4.1AA(3) of the CBLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the CBLEP and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

12. The Applicant submits that the Written Request does justify the contravention of the minimum subdivision lot size resulting from the Step 4 subdivision and that the Court can be so satisfied pursuant to cl 4.6 of the CBLEP and based on merit assessment already undertaken, which is not disputed on s 56A appeal, the grant of consent for all 4 steps of the Proposed Development is warranted.

13. The Respondent’s case is that development consent should be refused because the Written Request fails to provide reasons, substance and analysis and that “you can’t just say that just because the other development standard is satisfied that you can overlook this one – the Chief’s decision is that you have to deal with both.” (Transcript, 24 June 2025, p 54(48)-(49); p 55(16)-(19)). The Respondent agreed with the Applicant that in the event that the Written Request were not to be upheld, the Court may nevertheless proceed to grant consent to steps 1 through to 3 and make directions to the parties to file appropriate conditions of consent (Transcript, 24 June 2025, p 70)

14. In response to the Respondent’s submission as to what was said by Preston CJ, I rely on the published judgment of the s 56 Appeal where the Chief Judge said that both development standards need to be complied with and if one of them is contravened, as is the case in these proceedings, then that contravention may be justified pursuant to cl 4.6 of the CBLEP. His words at [54] of the s 56A Appeal are as follows:

“Clause 4.1A(5) does not override cl 4.1AA(3). Both provisions apply to a subdivision under the CLD Act of land on which a dual occupancy is erected.”

and see the quote of par [55] above at [2].

15. I give my reasons why I am satisfied pursuant to cl 4.6 of the CBLEP that the Written Request justifies the contravention of the minimum subdivision lot size for community title schemes development standard as a result of the Step 4 subdivision.

Is contravention of the minimum subdivision lot size for community title schemes development standard justified by the Written Request?

16. The Site is subject to a minimum subdivision lot size for community title schemes development standard pursuant to cl 4.1AA(3) of the CBLEP of 460m2. This development standard is contravened by the Proposed Development because, as a result of the Step 4 subdivision, proposed Lots 2, 3 and 5-14 would be less in area than 460m2 as required by cl 4.1AA(3). The Written Request confirms, and it is agreed that these lots would be at least 300m2, as required for subdivision of dual occupancy development by cl 4.1A(5).

17. The evidence before the court depicts the Step 4 proposed community title scheme subdivision lot sizes in the Proposed Plan of Subdivision (14 lots) dated 25 September 2024 (Ex B, Tab 38) to be as follows:

Lot 2: 362.5m2

Lot 3: 311.4m2

Lot 5, 6 and 7: 324.2m2

Lot 8: 325.3m2

Lot 9 and 10: 326.1m2

Lot 11: 323.8m2

Lot 12: 300.5m2

Lot 13: 300.7m2

Lot 14: 302.6m2

18. The Applicant is required to justify the contravention pursuant to cl 4.6 of the CBLEP which at the time the development application was lodged and before it was determined, provided as follows, so far as is relevant:

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 to 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 had adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Planning Secretary has been obtained…

19. It is well established that the relevant and often quoted decisions that provide guidance on the application of the terms of cl 4.6 are the following:

20. Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (“Wehbe”)

21. Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (“Initial Action”)

22. I have also referred to two other more recent decisions being:

23. Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 (“Baron”) and

24. Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22 (“Billyard”)

25. Clause 4.6 of the CBLEP is facultative: Initial Action at [9]. The permissive power in cl 4.6(2) to grant development consent for a development that contravenes the development standard is, however, subject to conditions: Initial Action at [13]. In Baron, Preston CJ at [77] said that:

“The requirement that the matters in cl 4.6(3) be demonstrated by the written request refers to an outcome, not a process. Although the written request “seeks” to justify the contravention of the development standard, it must do this by “demonstrating” the matters in paragraphs (a) and (b) of cl 4.6(3). These matters are outcomes: that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are environmental planning grounds to justify contravening the development standard.”

22. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority can exercise the power to grant development consent for development that contravenes a development standard: Initial Action at [13].

23. The first precondition, in cl 4.6(4)(a), is that the consent authority, or the Court on appeal exercising the functions of the consent authority, must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii): Initial Action at [14]

24. Preston CJ explains that the first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3).

“These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters.” Initial Action at [15]

25. Preston CJ further explains in Initial Action at [25] that:

“The consent authority, or the Court on appeal, must form the positive opinion of satisfaction that the applicant’s written request has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b). As I observed in Randwick City Council v Micaul Holdings Pty Ltd at [39], the consent authority, or the Court on appeal, does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b). The applicant bears the onus to demonstrate that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the applicant’s written request in order to enable the consent authority, or the Court on appeal, to form the requisite opinion of satisfaction: see Wehbe v Pittwater Council at [38].”

26. I will deal with both of these matters now before I go on to giving reasons below at [73] as to why I form the second opinion of satisfaction, required in cl 4.6(4)(a)(ii), namely that the Proposed Development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out. The second opinion of satisfaction under cl 4.6(4)(a)(ii) differs from the first opinion of satisfaction under cl 4.6(4)(a)(i) in that the consent authority, or the Court on appeal, must be directly satisfied about the matter in cl 4.6(4)(a)(ii), not indirectly satisfied that the applicant’s written request has adequately addressed the matter in cl 4.6(4)(a)(ii): Initial Action at [26]

Unreasonable or unnecessary

27. In, Initial Action at [17] Preston CJ acknowledged that the first and most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: Wehbe v Pittwater Council at [42] and [43].

28. Preston CJ, Initial Action at [20] identified

“A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council’s own decisions in granting development consents that depart from the standard and hence compliance with the standard is unnecessary and unreasonable: Wehbe v Pittwater Council at [47].”

29. The Respondent submits that the Wehbe first test method, achieving the objectives of the standard notwithstanding the contravention, fails because “the Request does not say anything about that development standard at all, and certainly does not make out a case for variation” (Respondent’s Written Submissions at par 13) and “does not address, elaborate, or elucidate as to why that standard or minimum has such an egregious effect in this case.” (Respondent’s Written Submissions at par 17). The Respondent also submits that the development standard must have a planning purpose and relies on the decision of Design 23 Pty Limited v Sutherland Shire Council [2003] NSWLEC 90 at [20] which refers in turn to Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438.

30. Firstly, the test is not whether the development standard has an egregious effect but rather whether compliance with the development standard is unreasonable or unnecessary and the Written Request relies on two methods to demonstrates that. The first method relied on is the most commonly invoked way being to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: Wehbe at [42] and [43] and Initial Action at [17]. The second method relied on in the Written Request is the fourth way identified in Wehbe at [47] and Initial Action at [20], being to establish that the development standard has been virtually abandoned or destroyed by the Council’s own decisions in granting development consents that depart from the standard and hence compliance with the standard is unnecessary and unreasonable. I will come back to abandonment at [65].

31. Secondly, whether a development standard has a planning purpose or not is also not the test when undertaking the task as set out in cl 4.6 of the CBLEP. As articulated by Preston CJ in Wehbe at [43]:

“The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).”

32. The six objectives of the development standard are contained in cl 4.1AA(1) of the CBLEP and I reproduce them below as follows:

4.1AA Minimum subdivision lot size for community title schemes

(1) The objectives of this clause are as follows—

(a) to ensure lots are large enough to accommodate proposed dwellings, setbacks to adjoining land, private open space and landscaped areas, driveways and vehicle manoeuvring areas,

(b) to ensure lots can be used for buildings that are safe from flooding, bush fire risk and other hazards,

(c) to ensure lots are large enough to protect special attributes, including natural or cultural features, heritage items, heritage conservation areas, trees and natural topographical features,

(d) to ensure all lots are provided with adequate and safe access,

(e) to minimise the likely adverse impact of subdivision and development on the amenity of the area,

(f) to prevent fragmentation or isolation of land.

33. In the Further Supplementary JER, Ms Englund only takes issue with objectives (e) and (f) of the development standard at par 14. However, as the Respondent makes submissions regarding the deficiencies of the Written Request, I will deal with each objective in accordance with the terms of cl 4.6(3)(a) and (4)(a)(i) of the CBLEP.

First objective (a): “to ensure lots are large enough to accommodate proposed dwellings, setbacks to adjoining land, private open space and landscaped areas, driveways and vehicle manoeuvring areas”

34. Ms Englund does not dispute that this objective is achieved notwithstanding the contravention.

35. The Respondent however, submits that the Written Request does not address the cl 4.1AA development standard on the one hand and on the other hand submits that the Written Request relies on assertions regarding setbacks, private open space and landscaped areas without comment or analysis.

36. I reject the submission that the Written Request does not address the cl 4.1AA development standard because it clearly states on p 1 that it is a “request that there be a variation to cl 4.1AA Minimum subdivision lot size for community title schemes”, it goes on to identify the contravention of the 460m2 minimum subdivision lot size as required by cl 4.1AA(3) on p 2 and states again that “it is the development standard in cl 4.1AA(3) to which this written request relates.” Then on p 4 the objectives of cl 4.1AA are reproduced. The Written Request, appropriately assumes that the dual occupancy development has been approved on Lot 2 and 4-8 and based on that assumption goes on to explain how each of the objectives of cl 4.1AA are achieved notwithstanding the lot sizes of proposed lots 2-3 and 5-14 being less than 460m2.

37. At the end of the consideration of each objective of cl 4.1AA the Written Request concludes that “Despite proposed Lots 2-3 and 5-14 being less than 460m2, the minimum lot size in cl 4.1AA(3), objective … is met.” Finally, the Written Request makes express reference to cl 4.1AA(3) on p 10 at point viii when listing the environmental planning grounds to support the written request and again when addressing the public interest on pp 10 and in the conclusion at p 11.

38. I also reject the Respondent’s submission that there has been no comment or analysis because in addressing objective (a) the Written Request clarifies that

“Each dwelling will have been constructed by the time the subdivision the subject of this cl 4.6 request is registered, so there will be no physical changes to setbacks, private open space and landscaped areas, driveways and vehicle manoeuvring areas.”

And then the Written Request goes on to explain, in relation to private open space and landscaped areas etc as follows:

“Each proposed dwelling is provided with the required open space and landscaped areas as set out in the controls contained in the Canterbury-Bankstown Development Control Plan 2023.

The dwellings are north-facing with habitable rooms designed to maximise the functionality of these combined spaces.

Each dwelling will have a private driveway. Vehicles can manoeuvre safely onto the common driveway. The common driveway has been designed so that 12.5m HRV vehicles can service the site.”

39. I find that the Written Request has adequately demonstrated that objective (a) of the cl 4.1AA development standard is achieved notwithstanding the contravention.

Second objective (b): “to ensure lots can be used for buildings that are safe from flooding, bush fire risk and other hazards”

40. The Written Request adequately addresses achieving this objective by reference to the design to accommodate appropriate freeboard above the design flood level on the Site and that the subdivision of the land “to accommodate each dual occupancy dwelling on an individual allotment does not change the hazard risk to the occupants of any dwelling.”

41. Neither Ms Englund nor the Respondent disputes that this objective is achieved notwithstanding the contravention.

42. I find that the Written Request has adequately demonstrated that objective (b) of the cl 4.1AA development standard is achieved notwithstanding the contravention.

Third objective (c): “to ensure lots are large enough to protect special attributes, including natural or cultural features, heritage items, heritage conservation areas, trees and natural topographical features”

43. The Written Request accurately states that the Site is in a heritage conservation area and opines on p 6 that “the significance of the heritage conservation area will not be affected by the proposed further subdivision of the site”. The Written Request also identifies that none of the lots to be created “will have special attributes or natural or cultural features” and that “the further subdivision of the site so that constructed dual occupancy dwellings will stand on individual allotments that are not less than 300m2 will not affect any attribute identified in objective (c).”

44. Ms Englund does not dispute that this objective is achieved notwithstanding the contravention.

45. The Respondent cross examined Ms Hodgkinson regarding special attributes and the fact that the Site is within a heritage conservation area. The Respondent’s submission is that the Step 4 subdivision will impact on the character of the area and that “these 6 subdivided lots will be an incongruity in this neighbourhood” and that “this is neither recognised, explained, or justified in the Request.” (Respondent’s Written Submissions at par 26)

46. I reject that submission for the reasons given by the Applicant in submissions in reply and generally regarding the objectives of the development standard as to amenity of the area and fragmentation. The Applicant referred the court to the evidence at Ex G demonstrating that the existing subdivision lots on King Street are not significantly different from the Proposed Development being lots 34 to 43 in DP 12677 at 16 ½ perches, or 417.3m2, and lots 1 and 2 in DP 531386 at 14 perches, or 354.1m2 and 13 ½ perches, or 341.5m2 respectively. I accept that insofar as the character of the area may be relevant to this objective, the Step 4 subdivision lot sizes are compatible with the existing adjoining subdivision layout fronting King Street. In any event, I find that the Respondent is substituting different words into objective (c) being words like character and incongruity in the neighbourhood which are not in the objective itself. This is contrary to the statutory interpretation exercise the court is otherwise tasked with: Billyard at [55]. The compatibility or congruity of the Proposed Development with the local area is not part of the objective (c).

47. I find that the Written Request has adequately demonstrated that objective (c) of the cl 4.1AA development standard is achieved notwithstanding the contravention.

Fourth objective (d): “to ensure all lots are provided with adequate and safe access”

48. The Written Request confirms at p 7 that all proposed new allotments will have access from the proposed common driveway, for both vehicles and pedestrians and that the adequacy or safety of access is not affected by the “mere re-subdivision”.

49. Neither Ms Englund nor the Respondent disputes that this objective is achieved notwithstanding the contravention

50. I find that the Written Request has adequately demonstrated that objective (d) of the cl 4.1AA development standard is achieved notwithstanding the contravention.

Fifth objective (e): “to minimise the likely adverse impact of subdivision and development on the amenity of the area”

51. Written Request states that “The proposed design of the subdivision does not impact visual or acoustic privacy between neighbours, does not result in a change to traffic generation, has no impact on the existing road network capacity, and does not of itself create overshadowing impacts.

52. Ms Englund, in the Further Supplementary JER at par 14 makes 2 observations to support her evidence that “the clause 4.6 request does not fully contemplate the likely impacts of the proposed subdivision. The first observation goes to the statement in the Written Request that the Step 4 subdivision “affects only the title to the land” and quotes my finding at [109] of the Hamptons Class 1 Appeal. That paragraph is not relevant to the Written Request as it relates to the assessment of and compliance with the floor space ratio development standard pursuant to cl 4.5 of the CBLEP.

53. The second observation made by Ms Englund is that the Step 4 subdivision ‘enables the potential for additional development on each site, including, for example, secondary dwellings.” During cross examination Ms Englund conceded that such potential for secondary dwellings requires a physical change which the applicant submits is not realistic as any future development application for a secondary dwelling would require substantial if not total demolition of the constructed dwelling. (Transcript, 24 June 2025, p 13(5) and p 51(20))

54. The Respondent submits in Written Submissions at par 29 that “amenity is a fluid and flexible concept that, in a context such as this, should reflect the interaction or symbiosis between this proposal and the neighbouring area.” The Applicant submits that no adverse effect has been identified. The Respondent’s submission is not supported by Ms Englund’s evidence in cross examination where she concedes that the Step 4 subdivision is a mere subdivision with no physical works because the dual occupancies will already have been built. Ms Englund agrees that there will be no physical environmental impact by the Step 4 subdivision.

55. Finding as to fifth objective that despite proposed Lots 2-3 and 5-14 being less that 460m2, the minimum lot size in cl 4.1AA(3), objective (e) is met.

Sixth objective (f): “to prevent fragmentation or isolation of land”

56. The Written Request notes that the Site is an in-fill site and that as a result of the subdivision ‘there will be no fragmentation or isolation of any land.’

57. In the JER Ms Englund states that “whilst the term ‘fragmentation’ is not defined by the BCLEP,” “the term is defined by the Cambridge Dictionary as ‘the action or process of breaking into small parts’” and she concludes at par 14 that “[i]n the context of cl 4.1AA(3) and the 460m2 minimum lot size prescribed, the proposed subdivision that seeks to create lots not insignificantly less than 460m2 could readily be described as fragmentation.”

58. The Respondent’s submission (Respondent’s Written Submissions par 30) is limited to the concern expressed by Ms Englund, that it that the creation of smaller lots is fragmentation in and of itself. The Respondent acknowledges correctly, that both experts indicated that there is no definition of what fragmentation means, but goes on to submit that “one of the objectives of having minimum lot size for a community title development is so that you don’t end up with objectively or relatively small, compared to other lots in the area, blocks of land. That’s exactly what fragmentation, in our respectful submission, can approach.” (Transcript, 24 June 2025, p 58(47)-(50))

59. The submission is rejected for 2 reasons. Firstly, the Respondent’s counsel seems to be seeking to give evidence from the bar table to supplement or fill a gap in the expert evidence and secondly because this submission seeks to read words into the objective of cl 4.1AA that simply are not there.

60. During cross examination Ms Hodgkinson said that in her view fragmentation generally meant to become disjointed from the main, not part of and therefore separated. She agreed that the subdivision would lead to lots smaller than 460m2 but that the lots would not be fragmented, that is, that they woepauld remain part of the urban development (Transcript, 24 June 2025, p 37(50)).

61. Ms Englund, in cross examination conceded that she does not say that any subdivision of land into an allotment which is less than 460 m2 would constitute fragmentation “because that would mean that you could never achieve the objectives with a non-compliance.” (Transcript, 24 June 2025, p 14(48)-(49))

62. The Applicant submits (Applicant’s Written Submissions at par 43(b)) that

“the proposed resultant subdivision is orderly and economic use of the land – it is not fragmentation of it. … Clause 4.6 introduces a flexibility to soften the otherwise strict application of numerical development standards.”

63. I find, as Ms Englund agrees, that the terms fragmentation and isolation in objective (f) can be understood to be subdivision outcomes to be avoided (Transcript, 24 June 2025, p 14(30)), or put another way, to be outcomes that do not achieve one of the objects of the Environmental Planning and Asessment Act 1979 (NSW) (EPA Act), namely at s 1.3(c) being to promote the orderly and economic use and development of land. For that reason, I prefer the evidence of Ms Hodgkinson in relation to the concept of fragmentation because unlike Ms Englund, her approach does not rely on mere size but rather the planning outcome of being ‘disjointed’ such as the example provided by the Applicant in closing that the panhandle could be seen as being a fragmentation from the overall Proposed Development. I conclude that the step 4 subdivision will not result in fragmentation or isolation of land and find that this fifth objective that despite (f) is achieved notwithstanding that proposed Lots 2-3 and 5-14 will be less than 460m2, the minimum lot size development standard in cl 4.1AA(3) of the CBLEP.

64. It is my conclusion that the first test in Wehbe is satisfied by the Written Request and I am satisfied that the Written Request has demonstrated that compliance with the development standard is unreasonable and unnecessary in the circumstances because the Proposed Development is consistent with the objectives notwithstanding the contravention of the minimum lot size development standard in cl 4.1AA(3) of the CBLEP.

Has the development standard been virtually abandoned or destroyed by the Council’s own decisions in granting development consents that depart from the standard and hence compliance with the standard is unnecessary and unreasonable?

65. Ms Englund gives 5 reasons why she does not agree that the Written Request has demonstrated that the standard has been abandoned: Further Supplementary JER par 18.

66. The Written Request need only establish one way that compliance with the development standard is unreasonable or unnecessary: Initial Action at [22]. As I have formed the requisite state of satisfaction that, in the circumstances the Proposed Development is consistent with the objectives of the standard in cl 4.1AA(3) of the CLBEP, the Applicant is not required to rely on the Written Request to demonstrate that the standard has been abandoned.

67. For completeness I do not find that the Written Request has demonstrated that the cl 4.1AA(3) development standard has been abandoned notwithstanding that there is ample evidence that the Respondent has granted development consent for the subdivision of dual occupancies resulting in varying lot sizes some being less than 300m2. The reason I am unable to be so satisfied is because the Written Request seeks to compare and conflate consents granted by the Respondent which were not subject to the 460m2 minimum subdivision lot size for community title schemes development standard pursuant to cl 4.1AA(3) of the CBLEP.

68. I now turn to the second matter required by cl 4.6(3)(b) of the CBLEP, whether the Written Request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard.

There is sufficient environmental planning grounds to justify contravening the development standard

69. Preston CJ, Initial Action at [23] and [24]:

“23 As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase “environmental planning” is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act.

24 The environmental planning grounds relied on in the written request under cl 4.6 must be “sufficient”. There are two respects in which the written request needs to be “sufficient”. First, the environmental planning grounds advanced in the written request must be sufficient “to justify contravening the development standard”. The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31].”

70. The Written Requests lists 8 environmental planning grounds at p 10. Notwithstanding, Ms Englund’s comments in the Supplementary JER, Ms Englund accepts at par 24 that the grounds put forward in the Written Request are sufficient environmental planning grounds.

71. The Respondent does not resile from that evidence.

72. I accept and agree to the extent required by cl 4.6(3)(b) and (4)(i) of the CBLEP that the Written Request demonstrates that there are sufficient environmental planning grounds to justify the contravention of the 460m2 minimum subdivision lot size for community title schemes development standard.

Public Interest

73. I now attend to the second opinion of satisfaction, required in cl 4.6(4)(a)(ii), namely that the Proposed Development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out: Initial Action at [27].

74. For reasons set out above, I am satisfied that the Proposed Development is consistent with the objectives of the development standard as set out in cl 4.1AA(1) of the CBLEP.

75. The Written Request explains on p 11 how the Proposed Development is consistent with the objectives for development within the R2 Low Density Residential zone as set out in the Land Use Table of the CBLEP.

76. Ms Englund makes no further comments in relation to consistency with the R2 Low Density Residential zone in the Further Supplementary JER.

77. For the reasons set out in the Written Request, I have formed the requisite opinion of satisfaction pursuant to cl 4.6(4)(a)(ii) of the CBLEP, namely that the Proposed Development will be in the public interest because it is consistent with the objectives of the cl 4.1AA(3) minimum subdivision lot size for community title schemes development standard and is consistent with the objectives for development for the R2 Low Density Residential zone in which the development is proposed to be carried out.

Findings and Conclusion:

78. I find that the contravention of the cl 4.1AA(3) minimum subdivision lot size for community title schemes development standard has been justified by the Written Request pursuant to the terms of cl 4.6 of the CBLEP and that

79. I conclude that as the jurisdictional prerequisite of cl 4.6 of the CBLEP has been satisfied, the granting of consent to the Proposed Development can be granted.

80. Having adopted the reasons and findings from Hamptons Class 1 Appeal in relation to the merit assessment of the Proposed Development and in relation to satisfaction of other jurisdictional prerequisites, I determine that the grant of consent to the Proposed Development is warranted subject to conditions.

81. In relation to the conditions, the Applicant submits, and the Respondent agrees, that if the Court were to grant consent, only one amendment to the conditions of consent marked Annexure A to my orders in Hamptons Property Services Pty Ltd v Canterbury Bankstown Council [2024] NSWLEC 1742, namely in Condition 2 to change the date reference to the first plan of subdivision to 25 September 2024 as per the substituted Ex L (referred to above at [6]). I have made that simple, agreed change to the conditions of consent.

Orders

82. The Court orders that:

83. The appeal is upheld.

84. Development application No DA-1124/2023 for demolition including tree removal and remediation of land, community title subdivision of land and construction of six dual occupancies, one dwelling house, ancillary driveway, car parking, stormwater infrastructure and landscaping works, and the dedication of land to Council for public open space, and further community title subdivision of 6 dual occupancies at Lot 1 in Deposited Plan 566982, known as 30 Trevenar Street , Ashbury is determined by the grant of consent subject to the conditions of consent at Annexure A.

85. All exhibits are retained.

……………………….

E Espinosa

Commissioner of the Court

Annexure A

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Amendments

29 July 2025

Uploaded the Annexure A.