COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 ('the EPA Act') against the refusal by Canterbury Bankstown Council ('the Respondent') of Development Application DA 58/2017 ('the DA') for the demolition of existing structures and construction of a four storey residential flat building with affordable in-fill housing as per the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) and one basement of car parking.
The site is located on the south western corner of Wellington Road and Patricia Street, Chester Hill, comprising a total site area of 607m2.
The site is legally described as Lot 32 in DP 35976, and is also known as 245 Wellington Road within the R4 High Density Residential zone under the Bankstown Local Environmental Plan 2015 (BLEP), and in the Chester Hill Village Centre as defined in the Bankstown Development Control Plan 2015 (BDCP).
The hearing commenced with an onsite view, at which there were no objectors, however the Court viewed adjoining properties from the street on Goodstate Place, and Patricia Street, and the multi-unit dwellings on the northern side of Wellington Road.
Prior to the hearing, the Applicant was granted leave to rely on amended plans (Ex C) which the parties agree resolved a number of the contentions. The remaining contentions may be summarised as follows:
1. The width of the subject site at the front building line is inadequate and does not comply with the relevant objectives and development standards in the BLEP.
2. The proposed development is inconsistent with the envisaged and desired future character of the area and would, if approved, set an undesirable precedent for future development in the locality.
The proposed development, as amended, contains four, three-bedroom apartments serviced by a common lift and fire stairs, with vehicular entry to the basement carpark accessed from Wellington Road, and a pedestrian entry located on Patricia Street.
As the proposed development is for a residential flat building in the form of infill affordable housing and pursuant to cl 1.9 of the BLEP and cl 16 of the ARH SEPP, the provisions of the State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development applies to the proposal.
As the issues in dispute primarily relate to planning matters, evidence was only required from the parties' Town Planning experts, Mr Philip North, for the Applicant, and Ms Priscilla Prakash for the Respondent.
Contentions that were related to traffic and car parking were resolved prior to the hearing resulting from the conferring between the relevant experts, Mr Paul Corbett for the Applicant, and Mr Stephen Kuntz, for the Respondent.
The parties agree that the SEPP ARH applies to the application subject of the development application. The aims of the SEPP ARH are contained in cl 3, and include, most relevantly:
..
(b) 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…
Part 2, Division 1 of the SEPP ARH contains provisions related to In-fill affordable housing, which are relevant in the following terms:
(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
…
(2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area…
Clause 14 of the SEPP ARH contains standards that, if met, cannot be used by a consent authority as grounds to refuse. It is agreed between the parties that the proposed development achieves all of the standards contained in cl 14, including site area, landscaped area, deep soil zones and solar access. Most relevantly to the appeal, subcl (b) provides that a consent authority must not refuse consent if the site area on which it is proposed to carry out the development is at least 450m2. It is commonly held that this provision has the effect of setting aside the minimum site area set out in sub cl 4.1(2)(a) of the BLEP.
In essence, the Respondent submits that the proposed development should be refused because the width of the site at the front building line does not comply with the requirement for the minimum width of the lot at the front building line to be no less than 30m, as stated in cl 4.1B(2) of the BLEP.
Clause 4.1B of the BLEP provides, relevantly:
(1) The objectives of this clause are as follows:
(a) to ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas,
…
(d) to minimise any likely adverse impact of the development on the amenity of the area,
(e) where an existing lot is inadequate in terms of its area or width - to require the consolidation of 2 or more lots.
(2) Despite any other provision of this Plan, development consent must not be granted to development on a lot in a zone shown in Column 2 of the table to this clause for a purpose shown in Column 1 of the table opposite that zone unless:
…
(b) the width of the lot at the front building line is equal to or greater than the width specified for that purpose and shown opposite in Column 4 of the table…
Column 1 Column 2 Column 3 Column 4
Residential Flat buildings Zone R4 High Density Residential 1,500 square metres 30 metres
[2]
In his oral evidence Mr North, for the Applicant, stated that the width of the lot when measured at the front building line, being Wellington Road, was 21.789m, which represents a non-conformance of 8.211m. On Patricia Street, the non-conformance is 2.518m.
According to the Respondent, the clear intent of the lot width provision contained in cl 4.1B(2)(b) is to encourage the amalgamation of lots by owners of smaller sites in the zone, in order to support greater residential density within the Chester Hill Village Centre. All properties located to the south of Wellington Road require amalgamation in order to achieve the high density residential development envisaged in the R4 zone.
The Respondent submits that where a site fails to achieve the minimum lot width of 30m, it is open to an applicant to propose other forms of development that are permitted with consent in the zone, such as attached dwellings, boarding houses, or multi-unit dwellings and which require a lesser lot width of 20m, and cites the decision of Commissioner Smithson in Hiep Van Nguyen v Canterbury-Bankstown Council [2017] NSWLEC 1234 ("Hiep Van Nguyen") at [48] that:
"only if adjoining owners work together to achieve amalgamation, can any single owner benefit from a high development yield as individually their properties are of insufficient size or width to facilitate the form of high density development desired by the Council and which meets all of the design controls of the DCP and ADG."
Mr North argues that other types of residential development that are permitted in the zone would fail to provide the high density development intended by the zone objectives, as would the non-residential uses that are permitted in the zone, such as centre-based childcare facilities. Instead, the proposed development is consistent with the zone objectives and also complies with the relevant objectives of cl 4.1B and, even if sites were consolidated as intended in the BLEP, it would be common practice for larger apartment buildings with a greater frontage to be highly articulated, with 'breaks' in the façade which would have the same effect as replicating the smaller volume proposed in the application across the adjacent sites in the future.
Unlike Hiep Van Nguyen, this appeal seeks approval for In-fill Affordable Housing under the SEPP ARH, which has the aims 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.
In the alternative, the Applicant relies on the decision of Commissioner Gray in Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 which held that the SEPP ARH permits the development of in-fill affordable housing in the form of residential flat buildings in zones where they are permissible, and on lots greater than 450m2. In this case, the proposed development is on a site with an area of 607m2, and where the Applicant has complied with the relevant setbacks, landscaping, communal open space, deep soil and car parking and manoeuvring as required by cl 4.1B(1)(a)-(d).
Furthermore, the Applicant relies on evidence of attempts to acquire neighbouring sites at No.2 Patricia Street and No.247 Wellington Road is found in Exhibit A, Tab 11. Enclosed in the correspondence with the owners of those sites was a valuation of the properties of $1,000,000 undertaken by Access Valuations, dated 7 September 2017.
In the case of No.2 Patricia Street, the Applicant formally put an offer of $1,140,000 to the owner, the Land and Housing Corporation (LAHC), on 12 September 2017 and 13 October 2017. In reply, LAHC advised on 30 October 2017 that a review of properties was ongoing and that, where properties are disposed of, an open market process is followed.
In the case of No.247 Wellington Road, the Applicant formally put an offer of $1,140,000 to the owner's legal representative on 12 September 2017, 13 October 2017 and 31 October 2017. The offer was declined on 22 September 2017, 16 October 2017 and 1 November 2017.
In her oral evidence, the Respondent's Town Planning expert, Ms Prakash stated that while her expertise was not related to land valuation, she is of the view that the valuations may have undervalued the properties, as the assessment of highest and best use was not based on the potential of a development on an amalgamated site, but where each site was developed separately, and where the offers were made in 2017.
Whether or not this is the case, having not acquired neighbouring properties in order to amalgamate the site for the proposed development, the Applicant relies on a written request, pursuant to cl 4.6 of the BLEP, to justify a contravention of the development standard relating to the minimum lot size for certain dwellings, contained in cl 4.1B of the BLEP.
As the lot width is a development standard within the BLEP, it is a jurisdictional precondition that must be satisfied in order to enliven the Court's power to grant consent. Consequently, before considering the merits contentions in this appeal, I must first consider whether the development application satisfies the preconditions with respect to the BLEP.
The Applicant's written request, made pursuant to cl 4.6 of the BLEP, seeks to contravene the provisions of cl 4.1B(2)(b) already reproduced at [14] and was prepared by Mr Philip North of Weir Phillips Heritage & Planning dated 9 July 2019, and was entered as Exhibit D, Tab 6.
Clause 4.6 of the BLEP provides the Court with the power to grant development consent to the development even though the development would contravene the development standard found in cl 4.1B, but that power is subject to conditions.
As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action"), for the Court to have the power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:
1. The proposed development will be consistent with the objectives of the particular standard in question (cl 4.6(4)(a)(ii)), and
2. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)),
3. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)), and
4. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).
The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power of the Court to grant development consent (Initial Action at [14]). I must be satisfied that:
1. the Applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3) and;
2. 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.
Clause 4.6(4)(b) also requires that the Court is satisfied that the concurrence of the Secretary has been obtained, noting that the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the Land and Environment Court Act 1979 (LEC Act) but should still consider the matters in cl 4.6(5) of the BLEP (Initial Action at [29]).
The written request acknowledges that the development does not comply with cl 4.1B(2)(b) for the reasons already stated at [15], and submits that compliance with the development standard found in cl 4.1B(2)(b) of the BLEP would be unreasonable or unnecessary because the objectives of the development standard and the objectives of the zone are met notwithstanding the non-compliance.
The written request relies on two of the five commonly applied tests set out in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] to justify the contravention of the development standard, for the following reasons:
1. That the underlying objective or purpose of the development standard is met notwithstanding the contravention of the standard because:
the site successfully provides an adequate size for the dwellings and associated facilities through compliant setbacks, adequate landscaping and private/communal open space, and adequate car parking and vehicular circulation; and
the lesser lot frontage minimises the likely adverse impact of the development on the amenity of the area because the reduced building width and mass results in more space between buildings in the streetscape, allowing a greater opportunity for breezes between buildings, greater separation between residents, and more opportunity for landscaping.
the proposed development demonstrates that a satisfactory development can be adequately accommodated on the land and that its width and area are adequate for this purpose, and so consolidation is not necessary.
1. The underlying object or purpose of the standard would be defeated or thwarted if compliance was required and therefore compliance is unreasonable, because a compliant development would thwart the objective found at cl 4.1B(1)(d) which aims to minimise any likely adverse impact of the development on the area. In support of this, the applicant relies on Figures 2, 3 and 4 of the written request which illustrates alternative development envelopes, and which describes a complying development as resulting in greater building mass and the creation of a 'street wall', and a 'long unbroken mass of building'.
Mr Seton, for the Respondent, submits that the alternative development form described by Mr North in the written request which provides for a lesser lot frontage, reduced building mass, and opportunity for breezes and landscaping between buildings, is not an objective or an outcome sought by cl 4.1B and so should be regarded as antipathetic to the development standard.
To the contrary, the Respondent considers the objectives of the R4 High Density Residential zone to encourage greater intensification of development and argues that the Applicant's written request does not merely seek to contravene the development standard, but to have it set aside in favour of a development form that is not intended or supported by the BLEP. According to the Respondent, the alternative development form advocated by the Applicant would not achieve the higher density envisaged in the BLEP, and would result in greater disruption to the streetscape through the proliferation of multiple driveways and the like that would be required to service a greater number of separate developments.
In section 5.0(3) of the written request, the Applicant advocates for the development standard in the BLEP to be modified to require a lesser frontage and site area for residential flat buildings generally. The Applicant argues, in essence, that the controls found in the development standard stand in conflict with the objectives of the development standard, and that complying with the development standard would be contrary to the objectives it seeks to achieve, or put in the opposite terms, that only by contravening the development standard can the Applicant hope to achieve the objectives of the development standard.
While cl 4.6 of the BLEP is a mechanism by which an applicant may seek to justify a contravention of the development standard, it is not a general planning power to determine the appropriateness of the development standard for the zoning or to effect general planning changes as an alternative to the strategic powers in Part 3 of the EPA Act (Initial Action at [21]).
I am not convinced by the Applicant's position that a complying development would thwart the object or purpose of the standard for the reasons set out in Mr North's own evidence at [19], which is to the effect that even if a complying development was proposed to an amalgamated site, the most likely approach to the design of the development would be to 'break up' the form through articulation.
Nevertheless, on balance, I am satisfied that the underlying objective or purpose of the development standard is met, notwithstanding the contravention of the standard, for the reason that the request demonstrates compliance with cl 4.1B(1)(a) in observing setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas. In so doing, the proposal demonstrates that the existing lot is adequate in terms of its area or width, consistent with objective (e).
In forming this view, I note that the site is a north-facing corner allotment, providing the Applicant with options to locate vehicular and pedestrian access, landscaping, deep soil areas and the location of communal open space whereas the provisions of cl 4.1B, if applied to a mid-block allotment such as No.247 Wellington Road, is unlikely to be achieved without a greater lot width.
[3]
Orders
The Court orders that:
1. The Appeal is dismissed.
2. Development consent for DA 58/2017 for the demolition of existing structures and construction of a four storey residential flat building with affordable in-fill housing as per the State Environmental Planning Policy (Affordable Rental Housing) 2009 and one basement of car parking is refused.
3. All exhibits are returned, except for Exhibits A, B and C.
T Horton
Commissioner of the Court
[4]
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: 10 September 2019
I am satisfied on this basis that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3)(a) of the BLEP. Next, the written request addresses the environmental planning grounds on which the proposed development seeks to justify the contravention of the development standard, which are summarised as follows:
1. It supports the utilisation of the site for affordable rental housing.
2. A less massive built form with a lesser footprint, more frequent separation between buildings and greater opportunity for light, air and landscaping between buildings.
3. A streetscape rhythm which would be more similar to the existing pattern of the development than a compliant development which would create a more subtle transition between existing development and the higher density development envisaged by the current development controls.
4. A shallower building footprint allowing triple aspect apartments with better access to light and cross ventilation.
5. To minimise any likely adverse impact of the development on the amenity of the area
The Respondent submits that the written request does not adequately address the matters required by cl 4.6 as it relies on grounds that promote the benefits of the development as a whole, and does not focus, as shown by Preston CJ in Initial Action, at [24], on the particular aspect or element of the development that contravenes the development standard, with the exception of reference to a shallower building footprint which is a consequence of the constrained site, and not an environmental planning ground that the Court would consider adequately addresses the matters in cl 4.6(3)(b).
Additionally, the Respondent notes that achieving a triple aspect apartment with better access to light and cross ventilation is not a requirement in any relevant guideline or control.
I accept the Respondent's submission that a number of the environmental planning grounds on which the Applicant relies do not relate to the particular aspect or element of the contravention. For instance, a complying development that achieved a wider frontage by amalgamating an adjoining site or sites could likewise utilise the site for affordable rental housing, and may even provide for a greater number of such apartments. Furthermore, I agree with the Respondent that the relevant provisions of the planning instrument are silent on whether the BLEP considers it desirable to achieve a streetscape rhythm that is more similar to the existing pattern of development, or to achieve more frequent separation between buildings.
As to whether a shallower building footprint and apartments with greater access to light and cross ventilation is a sufficient environmental planning ground to justify the contravention of the development standard, I acknowledge it is commonly held that buildings with smaller footprints are generally said to have a higher proportion of external surface area to floor area, which allows a greater opportunity for the placement of windows, balconies and the like to provide natural daylight and ventilation to internal spaces. Furthermore, greater access to natural daylight and ventilation is also generally to be promoted, being considered a more sustainable means of regulating physical comfort and promoting the mental wellbeing of occupants.
The question in this matter is whether it is reasonable to consider the provision of a shallower footprint so as to procure a greater quantum of natural daylight and ventilation as a proper basis on which to justify the contravention of a development standard that prescribes a minimum site width.
The Respondent's submission is that no guideline or control requires a triple aspect apartment, including any such requirement in the Apartment Design Guide (ADG) which provides objectives, design criteria and design guidance on the design of apartment buildings, including in relation to daylight and ventilation. While parties did not assist further with submissions on this point, I note Part 4A of the ADG is titled 'Solar and daylight access', and Part 4B is titled 'Natural ventilation'.
With reference to these parts of the ADG, the Applicant's reliance on a shallower footprint and triple aspect apartments as a sufficient environment planning ground to justify the contravention of the development standard as referred to in the written request is questionable in my mind for the following reasons:
1. Firstly, design guidance found in objective 4A-1 promotes dual aspect apartments (emphasis added) as one design feature to promote direct sunlight. Design guidance in similar terms is found in objective 4B-3 which refers to dual aspect apartments (emphasis added once again) in the context of achieving natural ventilation in the following terms:
"…the building should include dual aspect apartments, cross through apartments and corner apartments and limit apartment depths"
1. Secondly, Mr North's own evidence, found in Figures 2, 3 and 4 of the written request, is that a complying development on a larger site resulting from amalgamation may still produce two or three smaller, separate buildings with shallower footprints in which it is conceivable that some triple aspect apartments, if desirable, could feature.
2. While the guidance at Part 4B-3 includes advice to limit apartment depths, I consider the ADG to generally promote dual aspect apartments, and so cannot conclude that achieving a triple aspect apartment is a sufficient ground on which to justify the contravention of a development standard.
In my view, this ground may have a basis to justify the contravention of the development standard if, for example, the site was differently orientated so as to pose a particular challenge in achieving access to light or ventilation, and requiring a contravention of the development standard in order to overcome such a challenge. However the site addresses the desirable aspects of north and east, on a corner allotment where access to daylight and ventilation is abundant and unobstructed.
The written request also relies on the ground set out at [42(5)] to the effect that it demonstrates the proposed development will minimise any likely adverse impact of the development on the amenity of the area. While the Applicant maintains, and I accept, that the proposed development takes steps to minimise the adverse impact of overshadowing on adjoining properties to the south, this is only one measure of adversity avoided. While my view, as stated at [39], is that the written request demonstrates the existing lot is adequate in terms of its area or width for the development proposed, it does not demonstrate that the development minimises any likely adverse impact on the amenity of the area.
I consider the broader development potential of 247 Wellington Road and properties to the west is likely to be constrained without site amalgamation, particularly by the requirement to achieve separation distances set out in the ADG and which is, in turn, likely to adversely impact on the ability for development in the area to achieve the objectives of the R4 High Density residential zone.
I also note that cl 50(1A) of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations) requires the architect to prepare a statement in the form set out in cl 50(1AB) of the EPA Regulations, including at cl 50(1AB)(b)(ii), how the objectives in Parts 3 and 4 of the ADG have been achieved. The statement found at Exhibit A, Tab 10 does not provide the information required by cl 50(1AB)(b)(ii) and so does not assist the written request in addressing provisions related to daylight and ventilation which are found in Part 4 of the ADG as stated above.
While the aims of the ARH SEPP include incentives in relation to zoning, FSR and non-discretionary development standards, I am not satisfied that the written request adequately addresses the environmental planning grounds on which a contravention of the development standard at cl 4.1B would be justified. In this case, the Applicant's desire to provide a particular form of in-fill affordable housing is not supported by a development standard in the BLEP which otherwise seeks to provide incentives for higher density residential development by encouraging owners of adjoining sites to amalgamate. As I cannot approve the contravention to cl 4.1B of the BLEP, there is no jurisdiction to approve of the development application or consider anything else.