Katerinis v Canterbury-Bankstown Council

Land and Environment Court (NSW)|2017-07-19|Before: Olivieri P

Solicitors: McKees Legal Solutions (Applicant) A. Seton, Marsdens Law Group (Respondent) File Number(s): 2016/283742

Judgment

COMMISSIONER: John and Peter Katerinis ("the applicants") seek to demolish the existing structures at 47-51 Chapel Street, Roselands, and construct a multi-dwelling development with a number of the dwellings to be dedicated as affordable housing. They appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ("EPA Act") against a determination made by Canterbury-Bankstown Council ("the Council") to refuse development consent.
Following the commencement of the appeal, the proposal was amended through the filing of amended plans, leave to rely on which was granted by the Assistant Registrar on 26 May 2017. At the commencement of the hearing, the applicants sought, and were granted, leave to further amend the plans to respond to a number of minor issues identified in the joint report of the town planners. As a result, contentions regarding waste, car parking, stormwater management and dwelling size have now been resolved. The proposal, as amended, seeks the construction of 18 dwellings across 4 buildings, with two 2-storey buildings fronting Chapel Street, two buildings at the rear located parallel to each side boundary, and a basement level with 35 car parking spaces, individual storage areas and laundries, a waste storage room, plant room and bicycle storage cages. The two rear buildings each contain 5 attached dwellings, with the building to the north comprising 1 part single, part 2-storey dwelling and four 3-storey dwellings, and the building to the south comprising one 2-storey dwelling and four 3-storey dwellings. Five of the dwellings are nominated to be dedicated as affordable housing.

The site and its context

The hearing commenced with a view of the subject site and its locality. The site is 2651m2 in total and is comprised of three lots, legally known as Lot 30 DP 555773, Lot 40 DP 561045 and Lot 5 DP 37301, and located at 47-51 Chapel Street, Roselands. Each of the allotments currently has a dwelling and outbuildings situated thereon. The site is generally regular in shape, with an angular rear boundary. It has a frontage of 37.85m, a rear boundary of 37.77m, with a depth of 68.42m on the northern side and 73m on the southern side. It is sloped from the rear to Chapel Street, with a fall of approximately 3.82m along the northern boundary and with a cross-fall from north to south of 0.95m along the frontage.
The surrounding area is characterised by a mix of development including detached dwellings, dual occupancies and residential flat buildings. The residential flat buildings range from two storeys to four storeys, and are prohibited in the zone under the current planning controls. To the immediate north of the site is a four storey residential flat building, and to the immediate south a detached dwelling. Opposite the site, on Chapel Street, are detached dwellings, and to the south of the site beyond the detached dwelling are dual occupancies. At the rear, the site is adjacent to a detached dwelling on a battle axe block. Canterbury Road, an arterial road, intersects with Chapel Street around 260m from the site.

Planning controls

Section 79C(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 79C(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
The site is within the R3 Medium Density Residential zone under the CLEP 2012, in which multi dwelling housing is permissible with consent. Given that residential flat buildings are prohibited in the zone, an initial issue regarding the characterisation of the proposal was raised in the course of the Council's consideration of the application. The definition of each of "multi-dwelling housing" and "residential flat building" is unhelpful, as each defines the one by reference to the other. The definition of multi dwelling housing is "3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building", and the definition of residential flat building is "a building containing 3 or more dwellings, but does not include an attached dwelling or multi dwelling housing." However, as each dwelling has access from the ground floor, the parties agree that the proposal is correctly characterised as multi-dwelling housing, consistent with the decision of Brown C in Mount Annan 88 Pty Ltd v Camden Council [2016] NSWLEC 1072.
Clause 2.3(2) requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are: "• To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents."
Clause 4.3 of the CLEP 2012 provides for a maximum height of 8.5m and cl 4.4 provides for a maximum FSR of 0.5:1. The proposal complies with the height limit, but has a FSR of 0.82:1, which equates to an excess of 851.14m2 in gross floor area.
The applicants also seek to rely on the application of the SEPP ARH. Part 2 Division 1 of the SEPP ARH relates to in-fill affordable housing. However, cl 10(2) of the SEPP ARH provides that "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". Both parties agree that, for reasons that I will outline below, the development is not within an area that meets the definition of "accessible area". The Council says that this means the SEPP AHP does not apply, whereas the applicants say that cl 10(2) is a development standard that can be varied in accordance with cl 4.6 of the CLEP 2012.
If Part 2 Division 1 of the SEPP ARH applies, cl 13 of the SEPP ARH allows an increase in the maximum FSR that applies to the proposal by the percentage of the gross floor area of the development that is used for affordable housing. Based on dwellings 3, 5, 6, 12 and 14 being dedicated to affordable housing, this means that 32.3% of the gross floor area is being provided as affordable housing and therefore increases the allowable FSR to 0.82:1, with which the proposal complies.
The CDCP 2012 also applies to the proposal. An amendment to the DCP came into force on 30 January 2017, but development applications received prior to 30 January 2017, such as this one, are required to be assessed under the provisions of the DCP in place prior to the amendment. Parts 2 and 6 are relevant to the issues raised in the Council's contentions, some sections of which will be considered in more detail below.
The Canterbury Development Contributions Plan 2013, the State Environmental Planning Policy No 55 - Remediation of Land and the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 also apply.

Paths of approval

The applicants invited me to consider that there are two paths to the approval of the proposal. The first path is through the application of the SEPP ARH. If cl 10(2) of the SEPP ARH is a development standard, cl 4.6 of the CLEP 2012 allows flexibility in the application of that standard. As such, if I determine that cl 10(2) is a development standard, I must then consider the cl 4.6 request to vary the "accessible area" before proceeding to a merit assessment of the proposal. For the second path, if I consider that the SEPP ARH does not apply, I must determine whether the cl 4.6 request to vary the FSR should be allowed before proceeding to considering the merits of the proposal.
I do not consider it necessary to consider both of the paths in their entirety. I will first determine whether the SEPP AHP applies, or whether the requirement for the proposal to be in an 'accessible area' is a development standard. Upon so determining, I will consider the relevant cl 4.6 request and turn to the merits of the proposal as against the applicable controls. In considering the merits, I am assisted by the expert evidence of Ms Porter and Mr Minto, town planners, who participated in a joint conference of experts, prepared a joint report and gave evidence at the hearing.

The SEPP ARH

Part 2 Division 1 of the SEPP ARH allows for the provision of affordable rental housing in in-fill development. The division applies if the development is for the purposes of multi dwelling housing, and if the development is permitted with consent under another environmental planning instrument and the land does not contain a heritage item (cl 10(1)). However, as set out above, cl 10(2) of the SEPP ARH provides that the Division does not apply to the proposal "unless all or part of the development is within an accessible area".
Accessible area is defined in cl 4 of the SEPP ARH as follows: "accessible area means land that is within: (a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or (b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday."
There being no railway station or light rail station proximate to the site, neither (a) nor (b) can be satisfied. There are two bus stops located within 400m of the site, with a bus stop for route 487 located around 250m from the site near the intersection of Chapel Street and Canterbury Road, and a bus stop for route 946 located around 50m south of the Chapel Street site frontage. However, neither of these bus stops, nor the two bus stops together, meet the requirement for "at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday." Neither has a bus servicing the bus stop between 8 and 9pm on weekdays, with the final bus at around 7:11pm for route 487 and 7:18pm for route 946. Nor do they have a bus servicing the stop between 8am and 9am on Sundays, with the first bus at around 9:14am for route 487 and around 9:11am for route 946. As such, both parties agree that the development is not within an area that meets the definition of "accessible area".

Submissions

The applicants submit that cl 10(2), the requirement for the development to be in an "accessible area", is a development standard amenable to variation pursuant to cl 4.6 of the CLEP 2012. A development standard is defined in the EPA Act as follows (insofar as relevant): "development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, … (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work, … (m) the provision of services, facilities and amenities demanded by development, ..."
The applicants submit that the determination of whether cl 10(2) is a development standard requires consideration of the two step approach of Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270. The applicants submit that such an approach has been endorsed by the Court in Huang v Hurstville City Council (No 2) [2011] NSWLEC 151, Wilson Parking Australia 1992 Pty Ltd v Council of the City of Sydney (2014) 201 LGERA 232; [2014] NSWLEC 12 and, more recently, Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153. The first stage of the test requires determination of whether the proposed development is prohibited under any circumstances by the relevant provision, where that provision is construed in the context of the LEP as a whole. The second stage of the test requires determination of whether the provision specifies a requirement or fixes a standard in relation to an aspect of the proposed development.
In relation to the first stage of the test, the applicants submit that given multi-dwelling housing is permissible with consent in the zone, the development is not prohibited under any circumstances. Insofar as the second step is concerned, the applicants submit that the provision fixes a standard or specifies a requirement, being a distance requirement, which operates to provide for a standard in relation to other aspects of the development. The applicants submit that either way, it is not a prohibition, and can be distinguished from the provision that was the subject of the Court of Appeal's decision in Agostino v Penrith City Council (2010) 172 LGERA 380; [2010] NSWCA 20, in which there were criteria that operated by way of prohibition. In support of their position, the applicants rely on the principles summarised by Jagot J in Laurence Browning v Blue Mountains City Council [2006] NSWLEC 74, and submit that the reference in cl 10(1)(a) establishes the applicability of the SEPP and the issue of permissibility, and that therefore the wider context points to cl 10(2) as one that is in the context of carrying out that type of development. The applicants also submit that the provision falls within at least one, and probably three, of the elements of the definition of 'development standard', it operates to regulate rather than prohibit development, and it does not prohibit development under any circumstances if the development is permissible under another environmental planning instrument. The applicants point out that, consistent with the principles in Laurence Browning v Blue Mountains City Council, the requirement for it to be in an 'accessible area' relates to requirements that are external to the development and identifies a relevant aspect of the development. In light of this, the applicants submit that the requirement is a development standard.
The Council submits that firstly, it is not adequate to simply identify that the provision may conform with one of the described examples in subparagraphs (a)-(n) of the definition of 'development standard' in the EPA Act. The Council relies on Strathfield Municipal Council v Poynting, in which Giles JA rejected such an approach and said (at [57]): "In my opinion the respondent's submission is unsound, and should not be accepted. The argument pays inadequate regard to that part of the definition of "development standards" preceding paras (a) to (n)."
The Council secondly turns to the three elements that are contained in the definition of 'development standard'. The first of the three elements is that a development standard must be a provision "in relation to the carrying out of development". In Lowy v The Land and Environment Court of NSW & Ors (2002) 123 LGERA 179; [2002] NSWCA 353 at [29], the Court expressed the approach to be taken to the definition in the following way: "The definition of development standards and its application to particular provisions in environmental planning instruments, has generated a large and growing volume of case law. However the basic principles are clear. Development standards (par 20) are provisions "in relation to the carrying out of development" and they must be provisions by or under which "requirements are specified or standards are fixed in respect of any aspect of that development". Thus development standards control the carrying out of development by specifying requirements or fixing standards."
In considering whether cl 10(2) contains provisions in relation to the carrying out of development, the Council points out that there is a distinction between the requirements of cl 10 and the provisions of cl 13, the latter which may properly be described as provisions in relation to the carrying out of development. Similarly, cl 15 provides a number of beneficial provisions expressed in the language of "must not refuse consent". However, the Council asserts that those benefits only arise if the Division applies, and the Division applies only in limited circumstances. The Council submits that cl 10(2) is a provision that relates solely to the question of whether the beneficial provisions in the balance of Division 2 will apply to any development application. The Council submits that as such, the clause has nothing to do with the carrying out of development.
In considering the decision in Laurence Browning v Blue Mountains City Council, the Council says that it is important to note that the Court was concerned to ensure - in the approach to the consideration of development standards - that form did not trump substance. The Court was similarly concerned to recognise that the draftsperson makes a choice about how an outcome is to be achieved. When considering the drafting conventions that have been used, the Court recognised that a legitimate concern about substance and form should not be allowed to blur the distinction between result and means.
The Council submits that as can be seen from the examples where a provision has been held to be a development standard, those provisions are frequently expressed in the form: "consent must not be granted unless...". However, the Council submits that this drafting convention has not been adopted in the SEPP AHP and a relevantly different approach has been adopted. The Council submits that the approach that is used is one which means that unless a site is able to satisfy identified criteria, the Division simply does not apply.
Finally, the Council submits that even if the provision can be said to relate to the carrying out of development, that does not assist the applicants in any event. The Council submits that the authorities make it clear that in order to determine whether or not the provision is a development standard the first task must be to define the development. The Council says that on the assumption that cl 10(2) contains a provision in relation to the carrying out of development, that development is properly defined as: "in-fill affordable housing on land within 400m of a compliant bus stop." That is the only form of permissible development to which the Division applies. In support, the Council relies on the decision of Tobias JA in Agostino v Penrith City Council at [49]: "The definition of "development standards" is referrable only to provisions of an environmental planning instrument "in relation to the carrying out of development". Thus the development in respect of which it is asserted that the relevant provision is a development standard must be one which may be carried out; that is, one which is permitted or permissible. One can only determine that question by reference to the terms of the planning instrument."
As a result, the Council submits that even if the provision could be said to be one in relation to the carrying out of development, the development standard must be in relation to aspects of that development. It cannot change the development as defined. As such, the Council submits that the provision suffers the same fate as the provision in Agostino, and is therefore not a development standard.

Consideration

In my view the applicants have understood the two-stage test as a 'prohibition v regulation' dichotomy, which approach Giles JA departed from in Strathfield Municipal Council v Poynting. In discussing this, His Honour says (at [95]): "There must be found a distinction between a provision which is a development standard and a provision which controls development in some other way, and the guidance of the dichotomy in providing a conceptual basis for the distinction must be acknowledged. But neither the dichotomy itself nor its expression in the two different kinds of provision can replace the definition in the Act."
The primary task in understanding cl 10(2) and whether it falls within the definition of "development standard", is one of statutory construction. As observed by Robson J in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde at [35] (citing the decision of the Court of Appeal in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189), "whilst environmental planning instruments should be construed in a practical manner, rather than undertaking a meticulous examination of its terms, this does not override the basic principles of statutory construction which require that the Court pay attention to the language of the instrument and its apparent purpose."
In considering the language of cl 10(2), and the definition of 'development standard' contained in the EPA Act, I do not accept that cl 10(2) meets the definition of a development standard. Clause 10(2), together with cl 10(1), is a pre-condition to the application of Part 2 Division 1 of SEPP ARH. It is not a provision "in relation to the carrying out of development" and does not operate to set requirements or standards "in respect of any aspect of that development" as required by the definition of 'development standard'. In that regard, I accept the submission of the Council that it is a provision that relates solely to the question of whether the beneficial provisions in the balance of Part 2 Division 1 will apply. That is, rather than it providing standards on how development is to be carried out, cl 10(2) sets a pre-condition for the application of beneficial provisions that change the standards that apply to how development is to be carried out. The clause is the pre-condition, not the standard itself or the varied standards. There is a clear distinction. It is analogous to the zoning map, as it sets the criteria for what standards apply. As such, I accept that it can be distinguished from each of the cases relied on by the applicants, none of which considered a pre-condition to the application of planning controls.
Having regard to the context of cl 10(2), I am therefore of the view that it would be erroneous to apply the two-stage approach. However, if I am wrong in so viewing, I find that cl 10(2) fails at the second stage, as it does not meet the definition of 'development standard'.
This construction of cl 10(2) is consistent with the stated aims of the SEPP ARH. Clause 3 of the of the SEPP ARH provides, inter alia: "The aims of this Policy are as follows: (a) to provide a consistent planning regime for the provision of affordable rental housing, (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, …"
Each division of Part 2 of the SEPP ARH then provides different regimes for affordable housing depending on the nature of the development, and for each there is a varying degree of incentives referred to in cl 3(b). Part 2 Division 1 does not expand zoning permissibility, but facilitates the effective delivery of new affordable rental housing in infill development. It provides incentives through FSR bonuses and varying non-discretionary development standards, but only if the development fits within the categories identified in cl 10(1), if it is permissible in the zone, and, if the development is in the Sydney region, it is in an accessible area. Part 2 Division 1 is beneficial, but those benefits apply only if the conditions in clause 10 are met. What is unfortunate is the prescriptive definition of 'accessible area', which results in a development that has 188 bus services within walking distance not meeting the requirements of an 'accessible area'. However, the definition should not guide the construction of cl 10(2), and its unfortunate effect is not relevant to the construction of 'accessible area' in cl 10(2) as a pre-condition to the application of Part 2 Division 1 of the SEPP ARH.
I also accept the submission of the Council that it is not adequate for the applicants to simply identify that the provision may conform with one of the described examples in subparagraphs (a), (c) or (m). To do so, using the words of Giles JA, "pays inadequate regard to that part of the definition of "development standards" preceding paragraphs (a) to (n)" (Strathfield Municipal Council v Poynting at [57]).
Having determined that cl 10(2) is a pre-condition to the application of Part 2 Division 1 of the SEPP ARH, and is not a development standard, the SEPP ARH does not apply and the applicants do not benefit from the FSR bonus for providing affordable housing.

Floor space ratio and the clause 4.6 request

As set out above, cl 4.4 provides for a maximum FSR of 0.5:1, whereas the proposal has a FSR of 0.82:1, which equates to an excess of 851.14m2 in gross floor area.
CLEP 2012, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes for and from development in certain circumstances. Clause 4.6 provides, at (3) and (4): "(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 …."
Given that the proposal results in a breach of the FSR control, the Court cannot grant development consent unless the Court accepts that cl 4.6 has been satisfied. This satisfaction is a precondition to the exercise of the Court's power to grant consent.
Clause 4.6 is a standard clause included in local environmental plans. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7, Preston J, Chief Judge, found that in applying the provisions of cl 4.6, a commissioner has power to allow an exception to a development standard when they are satisfied that: 1. the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)) (at [7]), 2. the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)) (at [7]), 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 cl 4.6(4)(a)(i)) (at [38]), and 4. the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)) (at [38]).
In outlining (3) and (4) above, His Honour stated that the Commissioner need not be directly satisfied that compliance is unreasonable or unnecessary, or that sufficient environmental planning grounds exist, but rather "only indirectly by being satisfied that the applicant's written request has adequately addressed" those matters.
For the purpose of cl 4.6(4)(a)(ii) above, the objectives of the FSR control are: "(a) to provide effective control over the bulk of future development, (b) to protect the environmental amenity and desired future character of an area, (c) to minimise adverse environmental impacts on adjoining properties and the public domain, (d) to optimise development density within easy walk of the railway stations and commercial centres."

Submissions and evidence

The applicants amended their written request to reflect changes to the unit mix that they wish to dedicate as affordable housing, with their final written request dated 18 July 2017. The request outlines that compliance with the standard is unreasonable or unnecessary for the following reasons: "a. The proposal seeks to provide for a built form which it is submitted is appropriate in the circumstances of this case given that: i. It is compatible with the existing and desired future character for development within the locality. ii. It is of a bulk and scale which provides for an appropriate transition between the existing four storey residential flat building to the north of the site and the existing two storey dwelling houses located to the south and west of the site. iii. It is of a design which will not result in any unreasonable overshadowing or overlooking of the adjoining properties iv. It will not result in any unreasonable streetscape impacts. b. The proposal seeks to offset the provision of additional floor space area by dedicating a percentage of the additional floor area (consistent with the calculation of affordable housing under the ARH SEPP) as affordable rental housing to be managed by a recognised housing provider for a period of 10 years."
The request relies on the provision of affordable housing as sufficient environmental grounds to justify contravening the development standard, and sets out how the proposal is consistent with the objectives of the zone and of the FSR standard. The applicants submit that the provision of affordable housing in the manner proposed is appropriate as it reflects the formula of the SEPP ARH. The applicants submit that the reasoning of Commissioner Pearson in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 requiring the environmental planning ground to be "particular to the circumstances of this proposed development on this site" (at [60]) should not preclude me from finding that the provision of affordable housing is an environmental planning ground. Instead, the applicants submit that the decision of the Chief Judge in Randwick City Council v Micaul Holdings Pty Ltd departs from this approach, and in any event, if it doesn't, the provision of affordable housing adduces a public benefit in an area that can be accessed by bus services throughout most of the day. Mr Galasso submits on behalf of the applicants that affordable housing is part of the application, and that development consent can be granted to include the provision of that affordable housing.
The applicants rely on the evidence of Mr Minto, who acknowledges that the adjoining 4 storey residential flat building was approved under different planning controls, but opines that it nevertheless forms part of the existing character of the area and is a form of development which is unlikely to be demolished in the medium to long term. Mr Minto is of the opinion that the existing and desired transition by the Council to a two storey development results in a disparate relationship which ordinarily would not be encouraged or supported. Mr Minto is of the opinion that the proposal, which seeks to provide development which transitions between the 4 storey residential flat building and the adjoining single dwellings, is appropriate and that it is for that reason compatible with the existing and desired future character of the locality. Mr Minto concedes that the bulk at the rear is not consistent with the desired future character expressed in the CDCP as being for only one storey beyond the front 65% of the site, but is of the opinion that the proposal is nonetheless consistent with the future desired character.
Mr Minto is also of the opinion that, consistent with objective (b), the proposal will protect the environmental amenity of the area because it will not result in any unreasonable impacts upon the streetscape or the amenity of adjoining properties, particularly as a result of overshadowing or a loss of privacy. The applicants submit that the additional side setback to the south, which is greater than the controls require, mean that the additional storey will not be perceived at the interface of the southern boundary. Similarly, Mr Minto is of the opinion that the proposed FSR of the proposal will not result in any unreasonable internal amenity impacts. Mr Minto is of the opinion that the proposal will result in appropriate solar access, will not result in any unreasonable privacy impacts and does not propose unreasonable or excessive excavation of the site.
The applicants submit that there is an appropriate relationship with adjoining development at each boundary interface, and that no issues of adverse impact on neighbouring properties arise from the additional bulk. As a result, the applicants submit that compliance is "unreasonable and unnecessary" as the flexible approach allowed by cl 4.6 will allow a better impact through the additional bulk positioned in a manner that does not cause any adverse impact.
The Council submits that although the provision of affordable housing is an environmental planning ground that may justify contravening the development standard, this would require entry into a voluntary planning agreement ("VPA") and the Court has no power to require the parties to enter into a VPA. In support of this submission, the Council relies on the decision of the Court in Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council 153 LGERA 355; [2006] NSWLEC 733 and Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1. In the latter, Craig J adopts the reasoning of Jagot J in the former, that "[a]bsent the provisions relating to planning agreements, s 94 was the exclusive source of power for a consent authority to impose conditions requiring the payment of money" for a public benefit (Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council at [45]). The Council says that this reasoning, together with the decision of the Court of Appeal in Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41, supports the submission that a person cannot dedicate land, and the Council cannot require contributions, except if it does so in accordance with s 94 of the EPA Act.
The Council also submits that the cl 4.6 request must fail because the proposal is inconsistent with the objectives of the FSR control. The Council points out that the first and second objectives relate to future development and future character, so that the proposal cannot simply reflect the current characteristics of the area. In particular, the first objective (a) is about controlling "the bulk of future development", and the second objective (b) is concerned with protecting the "desired future character of an area". In this regard, the Council relies on the evidence of Ms Porter.
Ms Porter's evidence is that the proposal is inconsistent with objective (a) because the proposed FSR does not demonstrate an effective control of bulk as expressed by the development standard. In particular, Ms Porter's evidence is that the variation to the FSR standard and associated additional gross floor area of 850m2 is directly responsible for the subsequent breaches to the CDCP 2012 envelope controls for maximum storeys, building depth, building separation and private open space requirements. Ms Porter says that the breach of these building envelope controls is demonstrative of a proposal that does not effectively control development bulk.
Similarly, Ms Porter's evidence is that the proposal is antipathetic to objective (b) because the scale of the built form is not consistent with the controls that shape the future character. First, a key feature of that future character is for a one to two storey built form. In particular, Ms Porter refers to Parts 2.1.3 and 2.1.4 of the CDCP 2012. Part 2.1.4 provides that for multi dwelling housing, there is a maximum building height of two storeys in the front 65% of the site's depth measured from the street boundary, and one storey for the rear 35% of the site. Instead, the two buildings at the rear of the proposal have three storey elements within the front 65% of the site, and have two and three storey elements in the rear 35%. Ms Porter opines that this inconsistency with the control creates excessive visual bulk to internal and adjoining neighbours, particularly to the more sensitive lower density sites to the south and rear. Ms Porter's evidence is also that the visual bulk of the three storey elements is exacerbated by the topography of the land as it slopes upwards from Chapel Street to the rear.
The topography of the land also means that the western side of Chapel Street is elevated above the eastern side. Ms Porter therefore opines that a two storey built form on the western side will result in an increased presence than two storey development on the eastern side of Chapel Street. Ms Porter's evidence is that the proposed three storey built form exacerbates these natural conditions, and is therefore inconsistent with the future desired character for one to two storey built form.
A second feature of that future character is control over the bulk through a maximum building depth of 20m for multi dwelling housing. Ms Porter's evidence is that the visual bulk is substantially increased through a breach of this depth with a building depth of 33.5m. In this respect, Ms Porter opines that the proposal is further inconsistent with the character envisaged for the area.
Third, Ms Porter is of the opinion that the proposal is inconsistent with the future character as the adjoining four storey development is reflective of a previous undesirable element in the visual catchment, and that the future character of the area is not achieved by transitioning this building through providing a three storey development.
Objective (b) of the FSR control is also concerned with protecting the "environmental amenity" of an area. Ms Porter opines that the proposal is antipathetic to this the increased FSR and configuration of the development creates unacceptable impacts by requiring part of the northern row of dwellings to be excavated to an extent that compromises the amenity of future and adjoining residents, particularly in relation to outlook from, and solar access to, their private open space areas and living areas. Ms Porter is also of the opinion that the density also impacts on development's ability to provide the required 40m2 private open space as per CDCP 2012 and the ability to facilitate reasonable privacy conditions between the rows of dwellings.
Ms Porter also considers that objective (c) of the FSR control, which seeks to minimise adverse impacts on adjoining properties and the public domain, is not achieved through the excessive, uncharacteristic bulk of the development as viewed from adjoining sites and the public domain. Similarly, her evidence is that the FSR sought to be achieved on the subject site is contrary to objective (d), which seeks to optimise density within an easy walk of a railway station and commercial centre. Her evidence is that the FSR control that applies is reflective of the distance of the site from a commercial centre and railway station.
Ms Porter also disputes the applicants' assertion that compliance would be "unreasonable or unnecessary". In her opinion, the matters relating to compatibility and streetscape do not meet the test for either 'unreasonable' or 'unnecessary'. Further, Ms Porter points out that due to the topography of the front streetscape, a two storey development will provide that transition given that the current one storey dwelling on the site appears to have a similar height to the adjacent two storey dwelling to the south.

Consideration

Firstly, I accept the submission of the Council that the proposal is not consistent with the objectives of the FSR control as required by cl 4.6(4)(a)(ii), in that the design is antipathetic to the objective to control "the bulk of future development" and to protect the "desired future character of an area". I am of the view that the combined effect of the third storey elements, the two storey elements in the rear 35% of the site depth and the breach of the maximum building length, creates bulk in the middle and rear sections that will be perceptible on the streetscape due to the topography, to the adjoining neighbours to the south and west, and to the future residents of the two rear buildings the subject of the proposal. I accept the evidence of Ms Porter that this bulk is inconsistent with the desired future character of the area, which is for one to two storey developments. In my view, whilst the two storey street presentation at the Chapel Street interface is acceptable in its current form, the design creates bulk at the middle and rear which is inconsistent with the objective of the FSR standard to control such bulk. The existence of the residential flat building to the north and other residential flat buildings in the locality does not justify that additional bulk, but rather I accept it exacerbates bulk that is inconsistent with the future desired character.
An appropriate relationship at each boundary interface through setbacks greater than the controls at the south and to the rear, and by creating bulk adjacent to the bulk of the residential flat building to the north, may achieve consistency with the objective of the FSR control to "minimise adverse environmental impacts on adjoining properties" (cl 4.4(1)(c)) but it does not ameliorate the inconsistency with the objectives concerning the future bulk and future character.
Secondly, I find that the cl 4.6 request does not demonstrate that compliance with the standard is unreasonable or unnecessary. In discussing the Court's consideration of whether compliance with a standard is "unreasonable or unnecessary" in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 the Chief Judge, Preston J, explains (at [43]): "The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served)."
The applicants say that compliance is unreasonable or unnecessary because, first, the proposal is compatible with the existing and desire future character for development in the locality. For the reasons set out above, I do not accept that proposition. Second, the applicants say it is unreasonable or unnecessary because it allows for an appropriate transition between the residential flat building to the north and the dwelling to the south. I am not satisfied that providing such a transition renders compliance unreasonable or unnecessary. I accept the evidence that a transition from the residential flat building to the north, to the single level dwelling to the south, can be designed without the bulk proposed across the middle and rear of the site. I do not accept that the only way to provide that transition is with a proposal that breaches the FSR control.
The third reason that the applicants proffer in their cl 4.6 request as being one which renders compliance unreasonable or unnecessary is the lack of impact on adjoining properties and the streetscape. Specifically, the applicants say that the proposal is of a design which will not cause unreasonable overshadowing or overlooking. I do not accept that a lack of impact on streetscape or adjoining neighbours is sufficient, in and of itself, to render compliance with the FSR control unreasonable or unnecessary. The lack of impact does not justify the additional bulk, which is perceptible and is inconsistent with the objectives of the control.
Having found that the proposal is antipathetic to the objectives of the FSR control, and also having found that the cl 4.6 request does not demonstrate that compliance with the standard is unreasonable or unnecessary, the request to vary the FSR standard must be refused. As such, there is no utility in considering whether the written request adequately demonstrates that the provision of affordable rental housing is a sufficient environmental planning ground to justify a departure from the standard. Similarly, I need not consider whether the applicant can dedicate part of the development as affordable rental housing in the absence of a VPA. I also need not consider the remaining merit issues.
On refusing the cl 4.6 request, there is no basis upon which the variation to the FSR standard can be permitted. Accordingly, development consent must be refused.
The Court orders that: 1. The request to vary the floor space ratio standard, made pursuant to cl 4.6 of the Canterbury Local Environmental Plan 2012, is refused. 2. The appeal is dismissed. 3. Development application DA-104/2016 for the demolition of existing buildings and construction of 18 multi-dwelling units and basement car parking, including 5 units of affordable housing, at 47-51 Chapel Street, Roselands, is refused. 4. The exhibits are returned, except for exhibits 1, L, O and P. ................................... Commissioner Gray

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 September 2017

(2010) 172 LGERA 380

(2002) 123 LGERA 179

(2007) 156 LGERA 446

(2014) 201 LGERA 232

(2001) 116 LGERA 319

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