Jacobs v Waverley Council

The proposal

1. The secondary dwelling would comprise two bedrooms, an ensuite, laundry, WC and an open kitchen/dining/lounge area. The gross floor area of the building would be some 74m2.
2. A non-trafficable landscaped ("green") roof is proposed above the secondary dwelling. A new grassed lawn would lie between the building and the eastern boundary with some hard and soft landscaping. The side (southern) boundary landscape treatment would include both new planting and retention of some existing vegetation.

Lay submission

1. At the site view, one objector spoke. The objector's concerns included: secondary dwelling has excessive size/bulk, exceeds floor space ratio (FSR) controls, side setback too close, disagrees that this development would meet affordable housing needs, undesirable precedent, visual privacy (including sight lines to adjoining properties), noise, traffic. The objector was also concerned about the roof garden, including that it not be included in landscape calculations. On questioning from Mr Whealy (for the applicant) in regard to privacy, the objector commented that he would support a high fence on the boundary and landscaping measures.

Statutory framework

1. State Environmental Planning Policy Affordable Rental Housing 2009 ('SEPP') aims to facilitate the delivery of new affordable rental accommodation. The aims of the SEPP are as follows: to provide a consistent planning regime for the provision of affordable rental housing, to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, to facilitate the retention and mitigate the loss of existing affordable rental housing, to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, to facilitate an expanded role for not-for-profit-providers of affordable rental housing, to support local business centres by providing affordable rental housing for workers close to places of work, to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.
2. In part the SEPP's aims are delivered by allowing self-contained secondary dwellings in conjunction with another (principal) dwelling. To qualify, the new rental accommodation needs to meet defined floor area controls (discussed below).
3. In regard to the LEP, the relevant zone objectives of the R2 zone are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
4. It is notable that the proposal is permissible on the site both under the SEPP and the LEP.
5. Waverley Development Control Plan 2012 also applies to the site.

Issues

1. Four contentions are raised by Council: 1. Bulk and scale - in particular in regard to the non-compliance with maximum permissible floor space ratio standard under the SEPP and LEP. 2. Setbacks and rear building line - here Council argues that the proposal extends forward of the predominant rear building line and would have an effect on neighbouring development and Ewell Street and "does not acknowledge and respond to … the character of the existing environment". 3. Inadequate landscaping and open space - here Council references what it suggests as the inadequate residue open space area which would be available to the primary dwelling. 4. Public interest - here Council references submissions received during the public notification period for the DA, along with concerns in regard to precedent as well as design quality ambitions.
2. In this case, the judgement turns on the consideration of the proposal's contravention of the applicable FSR development standard. Clause 4.6 of the LEP provides flexibility to allow consent to development, even though it would contravene such standards, provided certain pre-requisites are met. In fact, and to make clear, there is no jurisdiction to approve the development unless these cl 4.6 pre-requisites are met.

Jurisdiction - contravention of development standards and consideration of cl 4.6 written request

Statutory setting

1. There are some further particulars in regard to the statutory setting which warrant attention here.

Applicable controls

1. Division 2 of the SEPP applies to secondary dwellings. Clause 22(3) of the SEPP addresses the question of FSR and is reproduced below. 22 Development may be carried out with consent ... (3) A consent authority must not consent to development to which this Division applies unless: (a) the total floor area of the principal dwelling and the secondary dwelling is no more than the maximum floor area allowed for a dwelling house on the land under another environmental planning instrument, and (b) the total floor area of the secondary dwelling is no more than 60 square metres or, if a greater floor area is permitted in respect of a secondary dwelling on the land under another environmental planning instrument, that greater floor area.
2. It is notable that the SEPP does not provide for any FSR bonus in regard to secondary dwellings (unlike for example boarding house development under Div 3 of the SEPP). Rather, in this case, the SEPP assumes the position of the LEP both in regard to total site FSR and in regard to the floor area of the secondary dwelling.
3. The experts agree that the applicable FSR control for the site is 0.633:1 (Ex 2).
4. A further control exists under cl 5.4(9) of the LEP. This clause controls the size of secondary dwellings and does apply in accordance with the provisions of cl 22(3)(b) of the SEPP. It provides as follows: (9) Secondary dwellings If development for the purposes of a secondary dwelling is permitted under this Plan, the total floor area of the dwelling (excluding any area used for parking) must not exceed whichever of the following is the greater: (a) 60 square metres, (b) 30% of the total floor area of the principal dwelling.
5. The experts agree that the proposal's floor area of the secondary dwelling calculates at well under 30% of the floor area of the principal dwelling.

Experts' views on the contravention

1. There is agreement between the experts that the principal dwelling has a gross floor area (GFA) of 297.5m2 (Ex G) and the secondary dwelling would have a GFA of 74m2. The site has an area of 429m2. It is agreed that the combined principal and secondary dwelling would have an FSR of 0.87:1 compared to the applicable FSR control for the site which is 0.633:1. According to Ms Robinson (planning expert for the Council) this calculates as an exceedance of 37%.
2. Mr Neustein (planning expert for the applicant) noted that there was scope to make inaccessible some lower basement areas of the principal dwelling (which could be conditioned) which would bring the combined FSR to 0.80:1 (Ex G, p4). Council was not in support of a condition to this effect, citing ongoing management concerns. Having viewed the setting I too have concerns about the practicalities of this change.

The jurisdictional test

1. The Court has given considerable attention to the question of contravention of development standards recently (see Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ('Initial Action 1') for both a summary and a most recent positioning of the caselaw). There is no jurisdiction to approve the development which contravenes a development standard unless the permissive powers available under cl 4.6 of the LEP are triggered (Initial Action 1 [13]). Clause 4.6 provides, relevantly, as follows: (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. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence.
2. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power under cl 4.6(2) to grant development consent Initial Action 1 [14]. The first opinion is in regard to the applicant's written request, and whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out. The written request is considered below.
3. I note here there is no requirement for me to seek or assume the concurrence of the Secretary (under s 39(6) of the LEC Act), but nonetheless I would mention that I do not see this matter as raising any matter of significance for State or regional environmental planning.

Clause 4.6 written request.

1. The applicant's written request seeking to justify the contravention of the development standard was prepared by City Planning Works and supported by Mr Neustein, a director of the firm and the applicant's planning expert. The applicable written request was provided only during the course of the hearing (after dialogue on certain particulars between the experts resulted in amendments to previous drafts). Council did not object to its forming part of the application and I also granted leave for that purpose. To distinguish the applicable cl 4.6 written request from earlier versions, the front cover dates the document as "March 2019" and it was recorded as Exhibit G in the hearing.
2. The written request needs to satisfy the Court in regard to both of the following tests: 1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and 2. that there are sufficient environmental planning grounds to justify contravening the development standard.
3. Because I find in the negative with regard to it, I will start with the written request's consideration of the second of these two tests.

Sufficient environmental planning grounds to justify contravening the development standard

1. Under the relevant heading within the document, the written request provides three points to demonstrate sufficient environmental planning grounds to justify the contravention. I reproduce the three points below (Ex G, par 8.1-8.3). "8.1 The sufficient environmental planning grounds required by clause 4.6(3)(b) can be found above and are not repeated here. 8.2 Justification for breaching the FSR restriction of clause 4.4 of the WLEP 2012 can be found in the aims and objectives of the SEPP Affordable Rental Housing 2009. Council can be satisfied that the proposal is a very positive development, meeting its (Council's) housing concerns with little or no environmental impact. The environmental planning grounds sufficient to justify the proposal are based on its meeting the housing needs of the community- an objective of the zone in the WLEP. 8.3 It is not sufficient to assert that the provision of affordable rental housing automatically warrants a departure from the applicable FSR control. The provision of additional low-scale affordable rental housing is a social benefit that does amount to 'sufficient environmental planning grounds' for the purposes of clause 4.6(3)(b) of the WLEP having regard to: • The unique circumstances of the site's location, • The scale and extent of surrounding development, • The higher FSR allowed in the immediate environs, • The presence of much larger adjacent buildings, and • The absence of any tangible environmental harm or adverse impacts."
2. The first of the points (referenced as par '8.1') draws in the previous commentary contained in the written request. Moreover, it has been my intention to consider the written request in its entirely to ascertain the arguments in support on the position of sufficient environmental planning grounds. I found three particular further points of relevance: (1) an emphasis on changing housing needs of the community (Ex G, par 3.3) and the submission that this proposal can assist in this regard including in regard to family needs, and (2) further points of emphasis on the site's context (multi-storey apartment buildings at 34, 36 and 44 Bennett Street and across both Bennett and Ewell Street and high density zone across Bennett Street) and the submission that the character of the immediate locality of the subject site will never revert to the double-storey detached houses suggested by the R2 zoning, and (3) the submission that the proposal would enhance the landscape quality of the site vicinity, in particular through the landscape roof and other planting (Ex G, par 9.2). The written submission also argues that the proposal is consistent with the zone and FSR objectives but for similar reasons to those otherwise put in regard to the question of sufficient environmental planning grounds.
3. To synthesise, and to frame my evaluation, it is my interpretation that the written submission can be reasonably summarised as positing the following four factors as environmental planning grounds justifying the contravention: 1. The housing would provide a particular social benefit as additional affordable rental housing. 2. There would be an absence of tangible environmental harm or adverse impacts from the proposal, with the proposal in fact enhancing the local landscape quality. 3. The site locality is "unique" or at least idiosyncratic. This is demonstrated by: the scale and extent of higher density development adjacent and nearby, the fact of the zoning change and that higher FSR is permitted across Bennett Street to the west. There are much larger buildings adjacent and/or nearby. Setting aside the neighbours to the east, adjacent and nearby development in the R2 zone already exceeds the FSR control (Ex G, Fig 3). In turn, the FSR controls applying to the site are not appropriate in this context and more generally the proposal would be compatible with its contextual setting. 4. The proposal would meet the housing needs of the community, an objective of the relevant zone, while also providing particular benefit in addressing changing housing needs.

Consideration

1. Initial Action 1 provides guidance on the interpretation of satisfaction that the applicant's written request has adequately demonstrated that there are sufficient environmental planning grounds to justify a development standard contravention. I reproduce pars [23]-[24] in full below. "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]."
2. The aspect or element of the development that contravenes the development standard is its GFA. It is necessary for the written request to demonstrate why GFA over and above what might be permissible under the LEP is justified on environmental planning grounds.

Affordable rental housing

1. The initial environmental planning ground, as synthesised at [33], is concerned with the provision of additional affordable rental housing. The proposal presents as a reasonably well-equipped (ensuite and separate WC) two-bedroom detached dwelling in a very well located area of Sydney. The written submission does not provide evidence to overcome the argument put by Ms Robinson (Ex 7, par 8(c)) that the proposal cannot be reasonably considered as affordable housing, and is more properly considered as conventional housing. I am not satisfied that this environmental planning ground is sufficient to justify the contravention.

Absence of environmental harm

1. The second environmental planning ground (at [35] above) argues absence of harm or a minor beneficial amenity effect (as a consequence of proposed landscaping). I am not satisfied that this environmental planning ground is sufficient to justify the contravention for the following two reasons. First, and mindful of the expert evidence, it seems to me more likely that the amenity effects would be marginally negative than positive. This on the basis of the minor overshadowing and again minor potential visual and acoustic privacy effects, which might be expected from adding a new two bedroom dwelling into the site's rear open space area. I also find that the loss of the particular (again minor rather than major) sense of openness which is perceived as one walks along Ewell Street and glances past the site (in an otherwise reasonably dense urban setting) would trump the argument that the green roof or other planting would add to landscape character. The second reason here is more significant. It is my view that, alone, "absence of any tangible environmental harm or adverse impacts" would not seem to me to offer sufficient grounds to override a control imposed by a statutory development standard. In my opinion it seems reasonable, in the circumstances before me at least, to assume something more positive needs to be otherwise evident to justify contravention of the FSR control. This point is considered further below.

Unique or idiosyncratic context and consequent compatibility

1. The third ground seeks to justify the contravention on the basis of the local context, and the fact of the varied but quite dense housing form evident in the locality and immediate area; including apartments to the immediate south and only a few blocks to the north at 36 Bennett Street within the R2 zone; and higher rise apartment development immediately across the road in the R3 zone.
2. There is a question as to whether the consideration of physical and built form context in this way is an environmental planning ground in the meaning ascribed at cl 4.6(3)(b), and how it might be appropriately considered in regard to the question of sufficiency.
3. Mr Whealy (solicitor for the applicant) helpfully referenced the findings of O'Neil C in Initial Action Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1097 ('Initial Action 2'), which found at [42] that in the circumstances of that case matters related to the drawing in of contextual relationships was accepted as an environmental planning ground and became an important part of the finding of sufficient environmental planning grounds for contravention of a development standard. The relevant commentary from Initial Action 2 [42] is reproduced below. … The applicant's written request defends the exceedance of the height of building development standard as a justified response to the scale of the existing Inter-War flats in the immediate context of the site on the basis that maintaining a consistent scale between the Inter-War flat buildings is appropriate because they are identified as making a significant contribution to the character of the Double Bay Precinct. I am satisfied that justifying the aspect of the development that contravenes the development standard as creating a consistent scale with neighbouring development can properly be described as an environmental planning ground within the meaning identified by his Honour in Initial Action [23], because the quality and form of the immediate built environment of the development site creates unique opportunities and constraints to achieving a good design outcome (see s 1.3(g) of the EPA Act).
4. I note here that Mr Hanna pointed out that in Arbib v Waverley Council [2018] NSWLEC 1475 at [44]-[46], Commissioner O'Neil made findings indicating limitations to the reliance on surrounding development when seeking to demonstrate sufficient environmental planning grounds for development standard contravention.
5. I have found the Commissioner's findings in Initial Action 2 useful for the interrogation of how context might weigh in. There are some points of distinction I would draw between the application before me and the setting for the findings in that case. First, is in regard to Commissioner O'Neill's finding that "creating a consistent scale with neighbouring development" can be considered as an environmental planning ground. I agree with this statement but, clearly, this conclusion has limited application for me as development of a new two storey dwelling in the backyard of an existing residential property would not reasonably be seen as creating "a consistent scale" in this site's neighbourhood.
6. Second, is to emphasise that O'Neill C provides a reason for the above conclusion, which is more conceptual or abstract, and in that sense more useful for consideration in the case before me. Her reason is to point out that the "quality and form of the immediate built environment of the development site creates unique opportunities and constraints to achieving a good design outcome". The Commissioner links this to s 1.3(g) of the EPA Act which is concerned with promoting "good design and amenity of the built environment". O'Neill C is drawing a practical connection with Initial Action 1 [23] (reproduced above at [36]), where Preston CJ finds that the adjectival phrase "environmental planning" (in the sense of the reference to cl 4.6(3)(b) of the LEP) is referring 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". But the Commissioner is also linking context to the promotion of good design, that is, to a positive environmental planning outcome.
7. Section 1.3 of the EPA Act lists a set of ten objects. I note here that Initial Action 1, is not suggesting that the interpretation of "environmental planning grounds" relevant to cl 4.6(3)(b) of the LEP, need be confined to a cross-checking against the items listed at s 1.3 of the EPA Act. That is to say, Initial Action 1 [23] opens up to a wider interpretation of environmental planning grounds, including its more nuanced and relational aspects, naturally including, but even going beyond "good design".
8. Setting that scene, I return to the point of whether and how, as argued in the written submission, the local context and built form mix can be considered as an environmental planning ground in the meaning ascribed at cl 4.6(3)(b) in this case and using the EPA Act objects as a frame. For me it can be inferred that grounds relating to the promotion of orderly and economic use and development of land (s 1.3(c) of the EPA Act) fit within the written submission's consideration of context (for completeness in this exercise of aligning with s 1.3 of the EPA Act, I note that in regard to s 1.3(d) I have already indicated that I am not satisfied with the written submission's argument that the proposal provides for the delivery of affordable housing).
9. To provide for orderly and economic use and development of land can deliver a positive environmental planning outcome, and would be reasonably considered as an environmental planning ground in that sense. On one hand the proposal can be considered as orderly development, as I am satisfied with the written submission's argument that the proposal would not alter the character of the wider setting (I have considered the more immediate setting above [39]). However, in another sense of the term, the proposal "orderliness" is problematic. Non-compliance with an FSR control, itself, might be seen as "disorderly", with development standards concerned with a rule-base and, as such, clarity and predictability. What remains in regard to "orderly" planning from the written submission is that the proposal would not alter the character of the wider setting. This is neutral rather than in any way positive or beneficial and does not seem to me sufficient environmental planning grounds to justify contravention of the standard.
10. I also can accept the submission that the proposal would provide for economic use and development of land. That is to say there would be an economic benefit occurring as a consequence of the development, and according to the written submission, it seems certain particular current dynamics for the applicant's family would be assisted. However these are only private benefits and, unfortunately for the applicant, would not bring persuasive weight. The economic benefits do not provide sufficient environmental planning grounds to justify the contravention.

Meeting the housing needs of the community, including changing and diverse needs

1. I am of course satisfied with the argument in the written submission that the proposal assists in meeting housing needs. It provides for an additional residence. I also appreciate the particular direct benefits for the family. But again such private benefits have little or no weight in the contest with a statutory development standard. Otherwise, I see this planning ground as limited. It seems to me something more than the mere addition of an additional dwelling to housing supply is needed to provide sufficient planning grounds to allow a 37% contravention of the existing FSR standard.

Findings in regard to jurisdiction

1. Beyond the provision of private benefit, the written submission's arguments are generally concerned with proving up that the proposal would have nil or negligible adverse effects. Such arguments would obviously assist with securing an approval for a compliant development, however are insufficient in this instance given the extent of non-compliance with a statutory development standard. In respect of cl 4.6(4)(a)(i) of the LEP, I am not satisfied that the applicant's written request has adequately demonstrated that there are sufficient environmental planning grounds to justify the contravention of the floor space ratio standard. In turn, the permissive powers under cl 4.6(2) of the LEP, relating to instances of contraventions of development standards, are not enlivened in this instance.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. DA 474/2017 for a secondary dwelling at 42 Bennett Street Bondi is refused. 3. The exhibits are returned with the exception of Exhibits 7, A and G.

P Walsh 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: 28 May 2019