Hicks Avenue Developments Pty Ltd v Botany Bay City Council

Land and Environment Court (NSW)|2016-05-27

Solicitors: Ms K Marginson of Mills Oakley (Applicant)

Mr S Shneider of Houston Dearn O'Connor (Respondent) File Number(s): 2016/155246 (previously 10129 of 2016)

Site and locality

The site is located on the western side of Hicks Avenue. It is divided into two allotments (Lot 1 DP 307812 and Lot A DP 313093). Lot 1 has an area of 461.6sqm and Lot A is 69.31sqm with a combined area of 530.91. The combined frontage to Hicks Avenue is 14.02m with side boundaries of 37.825m. A single storey dwelling house is constructed over the existing lots.
Adjoining the site to the north is a detached two storey Victorian dwelling (16 Hicks Avenue) which has a number of large trees towards its southern boundary and in its rear garden and is identified as a heritage item. To the south, the site adjoins a detached single storey cottage (20 Hicks Avenue). Both these properties are also built over two allotments. To the rear, the site adjoins L'Estrange Park. On the opposite side of the street are two recent detached two storey dwellings (13 and 15 Hicks Avenue).
Hicks Avenue is predominantly single storey detached dwellings with recent two storey dwellings. There is an older semi-detached dwelling at 2-4 Hicks Avenue.

Background and proposal

The development application was lodged on 21 December (Original Application). The applicant lodged a Class 1 appeal against council's deemed refusal of the application on 19 February 2016. A conciliation conference under s34AA(2)(a) of the Land and Environment Court Act 1979 commenced on site on 16 May 2016. The parties agreed to adjourn the matter to enable further amendments to be made and to obtain delegation from council to enter into an agreement.
The matter resumed on 27 May 2016, but no delegation had been granted and no agreement was reached. The matter proceeded to a hearing held forthwith and the parties agreed that the discussions in the conciliation conference, including the site view, would be evidence in the proceedings. The applicant sought and was granted leave to rely on amended plans (Amended Application). The main changes being an increased set back of the rear wall at ground level by 1m and the side walls at first floor, adjoining bedroom 3 of each dwelling, by 0.5m. The changes reduced the gross floor area (GFA) of the proposal by 16.75 sqm.

Statutory framework

The site is zoned R2 - Low Density Residential under Botany Bay Local Environmental Plan 2013 (LEP). Semi-detached dwellings and subdivision are permissible with consent.
Under clause 2.3(2), the consent authority must have regard to the objectives of the zone which relevantly include: ● To provide for the housing needs of the community within a low density residential environment. ● To encourage development that promotes walking and cycling.
Clause 4.4 and the FSR Map permit a maximum FSR of 0.55:1 (292sqm GFA). The Amended Application proposes a FSR of 0.619:1 (328.8sqm) accordingly, the applicant has submitted a written request to vary the FSR standard under cl 4.6 of the LEP, which provides: 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.
Botany Bay Development Control Plan 2013 (DCP 2013) is relevant. Part 4 provides objectives and controls for residential development and Part 8 provides character precincts. The site is within the Mascot Character Precinct (s 8.7) and the Existing Local Character (s 8.7.1)includes: The Precinct has a variety of residential buildings, with dominant styles being one-storey dwellings. This housing stock is of three main styles - Victorian Georgian, Californian Bungalow and Post-war. A variety of materials have been used in the construction of these dwellings, including fibro, brick or a rendered finish. The front setbacks, being the distance between the building line and the boundary line, are fairly uniform within each street within the Precinct ranging from approximately 2 metres to 3 metres in some streets to 5 metres to 6 metres in others.
The Desire Future Character (s 8.7.2) sought for the precinct includes: Function and Diversity ● Encourage different housing styles depending on the locality. ..... ● Encourage site layout, building styles and designs which promote commonality and a visual relationship with the surrounding built form and dwelling styles. ● Ensure there is consistent streetscape through the use of front setbacks, fencing and landscaping. Form, Massing, Scale and Streetscape ● Retain predominantly low density residential accommodation in the form of detached/attached dwellings in the remaining residential areas of the Precinct with a maximum height of 2 storeys (9metres height limit). ….. ● Encourage new development or alterations and additions to existing development to complement the height and architectural style found in the immediate vicinity, particularly where there is an established character. ● Maintain roof forms to reflect the characteristics of the prevailing designs within the street. Setbacks ● Retain front setbacks which are consistent within a street and promote landscaping to soften the built form. ● Retain side setbacks, where they are consistent within a street.

The evidence

The Court visited the site and heard from the adjoining neighbour at 16 Hicks Avenue whose main concern related the potential impact of the proposal on a large tree in his rear garden, particularly its stability. This has been addressed by the proposed conditions, which include the requirement that an arborist supervise the works.
A joint report of planning experts has been prepared by Mr A Betros, for the applicant and Ms A Lazaridis, for the council. The experts provided oral evidence to the Court on the Amended Plans.
The key issue that remained in dispute between the experts related to the proposal's non-compliance with the FSR standard in cl 4.4 of the LEP and whether the requirements to vary the standard under cl 4.6 were satisfied.
Mr Betros prepared an amended written request in accordance with cl 4.6(3) of the LEP (Written Request) that seeks to justify the contravention of the development standard. It provides that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the proposal achieves the objectives of the FSR standard and the zone. In particular, the proposal meets the FSR objectives as it is within a compliant building envelope as informed by the LEP height limit and various DCP controls; the semi-detached dwellings have been designed to appear as a single dwelling house that is similar in bulk, scale and appearance to other recent dwellings and is therefore compatible with the desired future character of the locality, which is undergoing transition; and the proposal provides improved residential amenity whilst minimising adverse environmental effects.
The Written Request also seeks to demonstrate that that there are sufficient environmental planning grounds to justify contravening the development standard for similar reasons to those above. In particular, the increased FSR will not result in greater impacts than a development which complied with the standard and would achieve opportunities for solar access to any redevelopment of 20 Hicks Avenue. The proposal replaces an outdated dwelling with two semi-detached dwellings with high external and internal amenity and positive streetscape and landscape outcomes.
Ms Lazaridis' principal concern was the bulk and scale of the development when viewed from the streetscape. In her opinion, there are no particular circumstances of the site or the development which justify contravention of the standard. In particular, she considered the proposed side setbacks (0.9m -1.4m) to the front of the first floor of the proposal were not consistent with the setbacks of recent dwellings in the street, which provide greater setbacks at the first floor that are generally greater than 2m and up to over 5m. The DCP specifies minimum side setbacks of 900mm but states that an increased setback may be required due to streetscape and bulk considerations. Ms Lazaridis considers the proposed side setbacks are not consistent with the side setbacks of recent two storey dwellings or with existing dwellings. Consequently, the overall bulk of the development is greater than the desired future character sought under the controls.
In Ms Lazaridis' opinion, the proposal does not satisfy the objectives of the FSR standard, in particular because the visual relationship of the proposal within the streetscape is not typical of the existing character and is greater in size than other development.

Submissions

Mr Eastman, for the applicant, and Mr Shneider, for the council, submit that the satisfaction of the requirements under cl 4.6 to vary the FSR standard is a precondition to considering the application on its merits. They both referred to cases to establish the proper assessment framework for cl 4.6, including Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009, Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90, Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248, Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7, Moskovich v Waverley Council [2016] NSWLEC 1015. In particular, they refer to the assessment framework established by Brown C in Bates Smart Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1001 and again in Samadi v Council of City of Sydney [2014] NSWLEC 1199 where at [27] - [29] the Commissioner states. The assessment framework 27. Clause 4.6 of LEP 2013 imposes four preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)). The second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). The third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). The fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)). 28. In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion at [27]: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. 29. A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.
Mr Eastman also referred to Winten Property Group v North Sydney Council [2001] NSWLEC 46; (2001) 130 LGERA 79 and Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 44, which although they relate to State Environmental Planning Policy No 1 - Development Standards (SEPP 1), provide guidance for dealing with "the process of the assessment of what it means for compliance with a standard to be "unreasonable" and "unnecessary".
In summary, Mr Eastman submits that the Court, through the Written Request: has all the material to be satisfied of the relevant preconditions in cl 4.6(4). Principally because "the proposal is consistent with the objectives [of the zone and the standard] (by not being antipathetic to them); further, not only is there no amenity impact as the proposal is acceptable from a merit perspective meaning it is unnecessary to comply with the control, and, the proposal achieves better the planning outcome envisaged by the site specific development controls in the DCP, than the approved building, with a compliant FSR, does". Mr Eastman submits that Ms Lazaridis, during conciliation, was satisfied that the application, with the proposed amendments, would not warrant refusal and that her evidence to the contrary should be given little weight.
Mr Shneider submits that cl 4.6 imposes four preconditions on the Court in exercising the power to grant consent and that these are not satisfied. The proposal is not consistent with the objective of the R2 zone to provide for the housing needs of the community in a low density residential environment as the FSR of the development, and resultant bulk and scale, is not suitable to a low density environment. The proposal is not consistent with the objectives of the FSR standard, particularly as the bulk and scale of the proposal is not compatible with the bulk and scale of the existing and desired future character of the locality, which is predominantly detached houses with wide side setbacks and is not an area undergoing transition. The Written Request does not provide any circumstances particular to the site and the development and therefore has not adequately addressed whether compliance with the standard is unreasonable or unnecessary in the circumstances of the case. Nor does the Written Request provide sufficient environmental planning grounds to justify contravention of the standard. The development results in greater bulk than other development in the street and immediate locality and consequently greater environmental impacts. Any solar access benefits to a future redevelopment of the adjoining property to the south could equally be achieved by a development which complies with the FSR control.

Findings

Under cl 4.6(4)(a) consent must not be granted to the development, which contravenes the FSR standard unless the Court 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, …
The experts main disagreement was whether the proposal will be consistent with the objectives of the FSR standard (cl 4.6(4)(a)(ii)). The objectives of cl 4.4 are: 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to establish standards for the maximum development density and intensity of land use, (b) to ensure that buildings are compatible with the bulk and scale of the existing and desired future character of the locality, (c) to maintain an appropriate visual relationship between new development and the existing character of areas or locations that are not undergoing, and are not likely to undergo, a substantial transformation, (d) to ensure that buildings do not adversely affect the streetscape, skyline or landscape when viewed from adjoining roads and other public places such as parks, and community facilities, (e) to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain, (f) to provide an appropriate correlation between the size of a site and the extent of any development on that site, (g) to facilitate development that contributes to the economic growth of Botany Bay.
I note Mr Eastman's submission that the test for consistency with the objectives is "not being antipathetic to them" which is the approach adopted in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 and by Brown C in Bates Smart and in Samadi. However, the term "consistent" has been considered in other a judgements of the Court in relation to zone objectives and has been interpreted to mean "compatible" or "capable of existing together in harmony" (Dem Gillespies v Warringah Council (2002) 124 LGERA 147; Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190). I have adopted this latter approach as being more appropriate to the satisfaction of whether the proposal is consistent with the objectives of the FSR standard in cl 4.4 of the LEP.
The key objective of cl 4.4 of the LEP in dispute between the experts was whether the proposal is compatible with the bulk and scale of the existing and desired future character of the locality (Objective b).
The DCP establishes that the existing local character of the Mascot Character Precinct (s 8.7.1) has a variety of residential buildings, with dominant styles being one-storey dwellings. This is reflected in the existing character of Hicks Avenue, where the predominant built form is single storey with a variety of styles and on different size allotments with some newer two storey dwellings. The desired future character in the DCP (s 8.7.2) generally seeks to retain predominantly low density residential accommodation in the form of detached/attached dwellings and to complement existing character. This is also reflected in the height and FSR controls in the LEP which generally reflect what is sought for a low density residential area.
While single storey dwellings are likely to be replaced by larger two storey dwellings on some lots, it is not an area undergoing transition or one where the character is sought to change. Due to the varied lot sizes in the street, with different frontage widths, it is unlikely that two storey dwellings of the size opposite the site will become the dominant form of development. Rather it is likely that the street will retain a mix of one and two storey dwellings of different sizes. The frontage of the site and the adjoining properties appears wider than other lots in the street, including those opposite with new dwellings, consequently, the proposal is likely to be widerr than other dwellings in the street.
It is within this context that the consistency of the proposal with the objectives of the FSR control should be assessed. I accept Ms Lazaridis' opinion that the additional FSR above the standard will result in a bulk of built form that is not compatible the bulk of existing development in the street, including the recent two storey dwellings, which have a significantly greater setback at the upper level than the proposal and consequently their bulk, when viewed from the street would be less than that of the proposal. I do not accept Mr Eastman's submission that Ms Lazaridis' opinion should be given little weight. Her opinion in the Joint Report was consistent with that in the hearing but during the conciliation phase she accepted that changes could be made (which reduced the GFA of the Original Application by 16.75 sqm but retained a non-compliance of 36.8sqm) that, once incorporated into amended plans, did not fully address her concerns.
Mr Betros opinion that the additional FSR is justified because it is within a "compliant envelope" is not accepted. The controls in the DCP such as rear setback of 4m are a minimum. It is not feasible that a built form could fill the "envelope" that is permissible on the site and comply with the FSR control. The "envelope" rather establishes where built form can be located subject to other controls such as FSR, setback of other buildings, overshadowing etc (see PDE Investments No 8 Pty Ltd v Manly Council [2004] NSWLEC 355)
The proposed two semi-detached dwellings, through their design, will appear as a single dwelling, however, the proposal will also appear wider and larger than other dwellings in the locality. It is not what is sought by the desired future character, which seeks to maintain a built form that compliments the existing low density character. The proposal therefore does not achieve sufficient compatibility with the bulk and scale of the existing and desired future character of the locality to be consistent with Objective b of cl 4.4.
The area is not undergoing substantial transformation, and for similar reasons discussed above, the proposal does not maintain an appropriate visual relationship with the existing character of the area and the streetscape (Objectives c).
The proposed dwellings are large, each with effectively four bedrooms and a study. A reduction in the size of the dwellings could easily be achieved to ensure greater compliance with the FSR control. There is no reason why a reduction in the size of the development would not further minimise environmental effects such as overshadowing from the adjoining property or the perception of bulk from the public domain (Objective e).
For the above reasons, I am not satisfied under cl (cl 4.6(4)(a)(ii)) that the development will be in the public interest because it is consistent with the objectives of the FSR standard
For similar reasons, there are no circumstances particular to this site or this development that demonstrate that compliance with the FSR standard is unreasonable or unnecessary or that there are sufficient environmental planning grounds to justify contravening the development standard. I am therefore not satisfied, as required under cl 4.6(4)(a)(i), that the Written Request has adequately addressed the matters required to be demonstrated under cl 4.6(3).
Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application that does not comply with the FSR control in cl 4.4 of the LEP and the application must fail. Accordingly, it is not necessary for me to necessary for me to discuss the other matters in dispute between the parties.

Orders 1. The appeal is dismissed. 2. The development application (15/250) for demolition of existing structures, construction of two x two storey semi-detached dwellings, landscaping and boundary adjustment at 18 Hicks Avenue, Mascot, is refused. 3. The exhibits, except Exhibit 3, are returned. Annelise Tuor Commissioner of the Court

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: 05 August 2016

(2002) 124 LGERA 147

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