Huang & Lei v Parramatta City Council

The site and its locality 3The site is a regular shaped allotment located on the eastern side of Midson Road. It has a width of 20.115 m and a depth of 60.96 m with an area of 1,226 sqm. It is developed with a single storey dwelling and a detached garage. A number of trees are located within the site. 4The site adjoins single storey detached dwellings to the north (118 Midson Road) and the east (13 Grandview Parade). To the south the site adjoins a single storey dwelling which fronts Midson Road (114 Midson Road) and a single storey dwelling on a battle axe allotment (114A Midson Road). 5The locality is predominantly residential with a mixture of one and two storey dwellings on large allotments. Some allotments have been subdivided to provide battle axe allotments or developed with dual occupancy developments. A multi unit development is located at 110-112 Midson Road.

Proposal 6The proposal seeks approval for the demolition of an existing dwelling and ancillary structure, tree removal and construction of a building containing multi dwelling housing comprising 2 x two storey and 2 x single storey attached dwellings with garaging for five cars. The garages are accessed off a common driveway located along the southern boundary of the site. Each dwelling has a courtyard located along the northern boundary of the site.

Planning framework 7The development application was lodged on 16 March 2011 and the site was then zoned 2(a) Residential under Parramatta Local Environmental Plan 2001 (LEP 2001). On 7 October 2011, Parramatta Local Environmental Plan 2011 (LEP 2011) was gazetted and the site was zoned R2 Low Density Residential. Both instruments permit dwelling houses with consent but dual occupancy developments, multi dwelling housing and residential flat buildings are not permissible on the site. 8Multi dwelling housing was permissible with development consent under the version of State Environmental Planning Policy (Affordable Rental Housing) 2009 (original SEPP ARH) in force at the time the application was made. Division 1 of Part 2 applies to infill affordable housing. Clause 10(1) provides: This Division applies to a development site on land if the development site is within any of the following land use zones or within a land use zone that is equivalent to any of those zones, but only if development for the purposes of dwelling houses, multi-dwelling housing or residential flat buildings is permissible within the zone: (a) Zone R1 General Residential, (b) Zone R2 Low Density Residential, (c) Zone R3 Medium Density Residential, (d) Zone R4 High Density Residential. 9The parties agree that Division 1 of Part 2 of the original SEPP ARH applied to the site as it is within a zone in which dwelling houses are permissible. 10On 20 May 2011, the original SEPP ARH was amended by State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011 (Amending SEPP). Clause 10 of the Amending SEPP relevantly provides: (1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if: (a) the development concerned is permitted with consent under another environmental planning instrument, and ..... 11The parties agree that the proposed development is not permitted with development consent in the 2A Residential Zone under LEP 2001 or in the R2 Low Density Residential zone under LEP 2011. Consequently, the development would not be permissible under the Amending SEPP, other than for the savings and transitional provisions in cl 54A (2). However, the parties disagree on the interpretation of this clause and therefore the permissibility of the proposed development. This issue is addressed later in the judgment.

Evidence 12The Court visited the site and heard evidence from adjoining residents. The residents were mainly concerned with the impact of the proposal on their amenity through loss of aural and visual privacy, solar access and the overall size and bulk of the development when viewed from their properties. They considered the proposal to be an overdevelopment of the site and uncharacteristic of the area. They were also concerned about the number of parking spaces provided and increased traffic likely to be generated by the proposal. 13The Court heard expert planning evidence from Mr A Minto, for the applicant, and Ms M Sarwary, for the council.

Permissibility 14Clause 54A(2) of the Amending SEPP provides savings and transitional provisions for development applications made prior to the Amending SEPP. It relevantly provides: ....... (2) If a development application (an "existing application") has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made. (3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. ......... 15Mr Seton, for the council, submits that the use of the word 'may' in subclause (2) enables the development application to be determined by applying either SEPP ARH as amended on 20 May 2011 or SEPP ARH as in force prior to this date. Mr Seton submits that in exercising this discretion, the decision of Lloyd J in Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 may provide guidance. His Honour, in Blackmore dealt with the role of a savings provision (with different wording to cl 54A(2)) in a planning instrument that is imminent and certain. His Honour at [30] states: Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 16Mr Seton submits that in the exercise of its discretion, the Court should consider the circumstances in which the application is made, in particular, the planning approach that is sought for the area under the planning controls. In this regard, Mr Seton submits that at least since 2001 Council has consistently sought to retain the area as a low density residential area in which dual occupancy, multi unit housing and residential flat buildings are not permissible. Mr Seton submits that the proposal is 'antipathetic' to this planning approach and that the Court should 'choose' to apply the Amending SEPP. The consequence of this would be that the proposal is prohibited as Division 1 of Part 2 does not apply and no merit assessment is required. 17In Mr Seton's submission, if the Court were to 'choose' to apply the original SEPP ARH, then the Amending SEPP, other than the mandatory consideration in cl 54A(3) should not be given weight or considered, as it is not a 'proposed planning instrument that is or has been the subject of public consultation' (s 79C(1)(a)(ii)). 18Mr McKee's primary submission, for the applicant, is that the proposed development is not prohibited as the development application is saved by cl 54A(2). The use of the word 'may' in cl 54A(2) is 'as a grant of power and effectively as a direction that SEPP ARH in its unamended form is to apply to the development application'. 19In the alternative, Mr McKee submits that 'even if the word 'may' in clause 54A(2) involves the exercise of discretion, that exercise of discretion cannot apply the Amending SEPP so as to prohibit the proposed development. To construe cl 54A(2) in such a manner is contrary to established principles of statutory construction as it would defeat the purpose of the savings provision'.

Findings 20SEPP ARH was made on 17 September 2009, it includes savings and transitional provisions in cl 54 which are retained in the Amending SEPP which introduced cl 54A. Clause 54(1) is in similar terms to cl 54A(2) and uses the word 'may'. Other subclauses in cl 54 and cl 54A use the word 'must', most notably cl 54A(3). The wording of cl 54(1) and 54A(2) and the use of the word 'may' is different to the wording of the savings and transitional clause in LEP 2011 and other LEPs made under the Standard Instrument (Local Environmental Plans) Order 2006, which use the word 'must'. It therefore should be assumed that the use of the different words has a deliberate meaning and intent. 21The Interpretations Act 1987 applies to all Acts and instruments, including environmental planning instruments (s3). Section 9 of the Interpretation Act explains the meaning of 'may' and 'shall'. It provides: (1) In any Act or instrument, the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion. (2) In any Act or instrument, the word "shall", if used to impose a duty, indicates that the duty must be performed. 22I accept Mr Seton's submission that the meaning and intent of the use of the word 'may' in cl 54A(2) indicates that the 'power' to determine an 'existing application' as if the amending SEPP had not been made may be exercised with discretion. However, I do not accept his submission that the exercise of discretion to apply either the Amending SEPP ARH or the Original SEPP ARH should primarily be based on the consistency of the proposal with the planning approach sought for the area by the local planning controls. 23The exercise of discretion to determine which version of the SEPP to apply would require a consideration of the circumstances of the case and the consequences of the exercise of discretion. In the circumstances of this case, an assessment of the application under the amending SEPP would result in the automatic prohibition and refusal of the application as it is not permissible under the Amending SEPP. No assessment of the merits of the application would be required, in particular a consideration under cl 54A(3) of whether the design of the development is compatible with the character of the local area. If the application were to be assessed under the version of SEPP ARH in place at the time of lodgement, cl 54A(3) would also be a mandatory consideration. 24In exercising the discretion, I acknowledge that the normal purpose of a saving clause is to have a savings effect on an 'existing application' by not introducing retrospective controls that are determinative. It preserves a developments permissibility while enabling a consideration of an application's consistency with the planning approach sought by the new controls. It would appear to be fair and reasonable that an application, which was permissible at the time of lodgement, should not be rendered impermissible by a new instrument. Rather a consideration of the merits of the application, under the Original SEPP ARH, including an assessment of the compatibility of the design with the local area, should be undertaken. 25In the circumstances of this case and in exercising the discretion under cl 54A(2), I find that the application should be determined as if the amending SEPP had not been made.

Character of the local area 26The planners agree that the local area is the block bounded by Midson Road (both sides), Boronia Avenue, Grandview Parade and Carlingford Road. They disagree about the character within this local area. Ms Sarwary considers the character of the area is predominantly low density with one and two storey detached dwellings that are orientated towards the street with open space in the rear setback area. She acknowledged that there are examples of dual occupancy developments, multi dwelling housing and small neighbourhood shops but did not accept that this formed the predominate character that currently existed or was envisaged by the planning controls for future development within the area. She noted that under LEP 2011 dual occupancy and multi unit housing is not permitted in that part of the R2 Low Density Residential zone in which the site is located, but is permissible on the other side of Midson Road. 27Mr Minto held the different opinion that while the character of the area is 'largely residential in its composition and comprising of mainly single dwelling houses does contain other land uses as well as a number of examples of multi unit housing including dual occupancies and villa/townhouse developments'. He noted that these developments, as well as a number of the detached dwellings, have built form located towards the rear of the their lots. Compatibility of the design with the character of the local area 28Ms Sarwary and Mr Minto agree that to be compatible a development does not have to be the same as adjoining development but should be a 'similar development type capable of existing in harmony with surrounding development and to the streetscape and the locality.' They both referred to the decision of Roseth SC in Project Venture Pty Ltd v Pittwater Council [2005] NSWLEC 191 which provides principles for the compatibility of a proposal with surrounding development. 29Ms Sarwary and Mr Minto also agree that the proposal is compatible with the streetscape and landscaped character of the locality in relation to trees. However, they disagree whether the design of the development is compatible with the local area. Ms Sarwary considers the proposal does not respond to the essential elements of the area. In particular, she considered the orientation of the dwellings and their open space to be uncharacteristic and to have adverse amenity impacts on the adjoining property. 30Ms Sarwary was also concerned about the uninterrupted length of the building and the extent of the setback to the rear. She acknowledged that there are examples in the local area of buildings which are placed towards the rear of lots but considered that there is generally separation between the building at the front and the building at the rear, as is the case with lots that have been subdivided to provide a dwelling on a battle axe allotment, such as 114 and 114A Midson Road. 31Mr Minto considered the design of the proposal responded to the character of the area. The two storey part of the building was located within the front 'building zone' and the part of the building in the rear of the site was single storey. The setback to the rear and the orientation of the open space towards the side boundary was similar to other buildings in the area and did not result in unreasonable amenity impacts.

Findings 32In Project Venture, Roseth SC considered the question of a proposal's compatibility with it surrounding area as follows: 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. ....... 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. ....... 33The key dispute between the experts is whether the proposal adequately responds to the essential elements that make up the character of the surrounding urban environment and is therefore compatible. The essential elements are predominantly a built form which is located in the front of the lot (the 'building zone') with an area of open space to the rear (the 'green zone'). This is mainly in the form of detached dwellings that are orientated towards the street in the front and towards their principal open space to the rear, with limited side setbacks other than for driveways. Some dwellings have buildings at the rear of their properties but these are secondary structures that are generally separated from the main building by open space. 34Some lots have dual occupancy developments or have been subdivided and now contain a second dwelling on a battleaxe allotment. These dwellings are separated from the front dwelling by open space, which generally maintains the 'green zone'. 35The villa development at 110 - 112 Midson Road has dwellings along the length of the lot that are orientated towards the central driveway and the side boundaries. This form of development does not maintain the pattern of 'building zone' and 'green zone'. 36These dual occupancy, battleaxe and villa house developments are not the predominant form of development in the local area and, to a greater or lesser extent, they do not maintain the essential elements that form its existing character. This form of development is also not the form of development that is envisaged by the planning controls for the area. 37The design of the proposal attempts to responds to the character of the local area by placing the two storey component in the 'building zone' at the front of the site with a single storey component at the rear. It also seeks to break up the length of the building through setbacks, articulation and landscaping. However, despite these measures, I accept the evidence of Ms Sarwary that the design of the development is not compatible with the character of the local area to the extent that consent may be granted. 38The built form extends some 47 m along the length of the site. While the building is articulated there is no separation between the dwellings or break in the building form. The building is setback 5.5 m from the rear boundary. This setback and the absence of a break in the building do not maintain the 'green zone', which generally exists between buildings in the local area. The side setbacks to the north are used as the primary open space areas for the dwellings and vary in width from about 2.7 m to 4 m. This is different to the orientation of principal private open space in the local area which is generally towards the rear of the dwelling. 39The proposal has a similar orientation and form to the villa houses. This form of development places the built element and private open space along the length of a lot and does not maintain the essential elements which make up the character of the area, including a degree of separation between built form and orientation of open space towards the rear boundary creating a 'green zone'. 40As required by cl 54A(3) of the amending SEPP, in considering whether the design of the development is compatible with the character of the local area, for the reasons outlined above, I find that it is not and that development consent should not be granted. Other issues 41The other issues in relation to acoustic privacy and adequacy of social impact would, of themselves, not be a reason to refuse the application. As the application fails on other grounds it is not necessary to adjudicate between the competing positions on these issues.

Orders 1.The appeal is dismissed. 2.The development application for an affordable housing development at 116 Midson Road, Epping, is refused. 3.The exhibits, except Exhibit 1, may be 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 April 2012