Kidd v Georges River Council

Is compliance with the minimum subdivision lot size development standard unreasonable or unnecessary?

1. In assessing whether compliance with the standard is unreasonable or unnecessary, it is appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 in which His Honour identified the five most frequently used pathways applied to establish whether compliance is unreasonable or unnecessary.
2. These are to establish one, or more, of the following: 1. that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary; 3. that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; 4. that the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable; 5. that "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary.
3. The Applicant's cl 4.6 written request asserted that compliance with the minimum subdivision lot size development standard is unreasonable or unnecessary because the proposal achieved the objectives of the standard.
4. The objectives of the development standard in cl 4.1 of KLEP were previously identified above at [17(4)], and are to: promote the efficient use of land; to ensure that subdivision does not prevent the orderly development of land; require adequate street frontages and dimensions for standard and battle-axe lots; and ensure that the intensity of development is appropriate to the land's environmental capability.
5. The Applicant's cl 4.6 written request sought to demonstrate that compliance with the minimum subdivision lot size development standard is unreasonable or unnecessary because the Applicant's proposed development achieved the objectives of the standard as follows: 1. In relation to first objective, concerning the orderly use of land, the Applicant's cl 4.6 request said that this objective was achieved because: 1. the proposal seeks to provide a dwelling on each proposed allotment of land, being 453m2 for proposed Lot 1and 460m2 for proposed Lot 2; 2. concept drawings provided indicate that: 1. a two storey dwelling in accordance with the height, FSR, setback, parking and landscaping controls can be provided on the proposed Lot 1; 2. the existing tree on the Subject Site would be protected; 3. adequate stormwater management would be achieved on both proposed Lots; and 4. adequate open space and parking would be provided on proposed Lot 2; 1. In relation to the second objective, concerning ensuring that the proposed development does not prevent the orderly development of land the Applicant's cl 4.6 request said that this objective was achieved because: 1. the proposed subdivision of the existing site is considered to represent the orderly development of land, given its compliance with provision of clause 4.1C of KLEP; 2. Clause 4.1C allows for the subdivision of the site for the purpose of two allotments, where a site has two road frontages and a dual occupancy has been lawfully constructed on the site. The outcome of this clause matches the outcome proposed under cl 4.1 for this application, with the difference being the timing of construction; 3. the objective of cl 4.1C is to ensure that dwellings on lots created by subdivision of a lot, on which a dual occupancy has been erected, do not exceed the permissible FSR of the site. The minimum lot size under this standard is 300m2. As the proposed development would provide two lots exceeding this control, the Applicant's written request stated that the resultant lots would allow for a reasonable development in the form of a dwelling on each lot, each complying with the applicable FSR control. 1. In relation to the third objective, requiring adequate street frontages and dimensions for standard and battle-axe lots, the Applicant's cl 4.6 request said that this objective was achieved because: 1. the outcome of the Applicant's proposed development would match the outcome of a development under cl 4.1C of KLEP, confirming that the street frontage, and the area of each lot, is sufficient to accommodate a dwelling within each lot. 1. In relation to the final objective, concerning ensuring that the intensity of development is appropriate to the land's environmental capability, the Applicant's cl 4.6 request said that this objective was achieved because: 1. the concept drawings of a possible dwelling on proposed Lot 2, prepared by Harrison Friedmann, provide for a dwelling which is compliant with council's controls in terms of height, FSR, setbacks, deep soil landscaping and parking; 2. for the reasons provided above at [(a)], the site is capable of supporting future development for the purposes of a dwelling house which would occur as a result of the proposed subdivision; 3. the existing site could accommodate a dwelling on proposed Lot 1 whilst retaining the dwelling on proposed Lot 2, without compromising the amenity of either dwelling; and 4. development on proposed Lot 1 could be undertaken in such a manner as to allow for the retention of the existing significant tree and to allow adequate stormwater management.
6. During the hearing the planning experts provided testimony in relation to the Applicant's cl 4.6 written request, As part of this, Ms Askin confirmed that she was the author of the Applicant's cl 4.6 written request, and she said that, in arriving at the conclusions expressed above at [55(1)] and [55(4)] concerning the first and fourth objectives of cl 4.1 of KLEP, she had: 1. applied her experience in undertaking her assessment on the likely compliance and potential impacts of the Applicant's proposed concept dwelling on proposed Lot 1; 2. not given consideration to the deep soil and other landscape controls applicable to the Subject Site in relation to the Applicant's proposed subdivision; 3. not had the benefit of elevations to confirm the height of the Applicant's concept dwelling in relation to the height of buildings control in cl 4.3 of KLEP; 4. not had the benefit of shadow diagrams in relation to the Applicant's proposed concept dwelling, and the potential impact of overshadowing on the property to the south of proposed Lot 1; and 5. not considered the potential impact, including potential overshadowing impacts, of the two storey dwelling on the adjacent lot to the north of the Subject Site at 68 Kyle Parade; 6. as a consequence of her testimony above at [5], not considered: 1. the potential amenity impacts of house at 68 Kyle Parade on the Applicant's proposed concept dwelling for proposed Lot 1; and therefore 2. the capacity of a development on proposed Lot 1 to be compliant with relevant amenity related controls applicable to the Subject Site.
7. Having considered the testimony of the expert planners, I have concluded as follows in relation to concerning the proposed development's compliance with the objectives of the minimum subdivision lot development standard in cl 4.1 of KLEP: 1. as concerns the first objective of the development standard concerning the efficient use of land: 1. the statement in the cl 4.6 written request that the proposed development would provide a dwelling on each proposed lot of the sizes identified by the Applicant, is a statement of fact, and cannot demonstrate achievement of this objective, in my assessment, any more than would a non-compliant proposal to subdivide the Subject Site into four lots. 2. the assertion in the cl 4.6 written request that the concept drawings provided indicates that a two storey dwelling can be provided on proposed Lot 1 in accordance with various development standards and controls applicable to the Subject Site. In my assessment, while Ms Askin confirmed that the assertion was based on her experience, it was not based on an objective and fact based evaluation of the concept design against those standards and controls. I base this finding on Ms Askin's testimony that her assertion of compliance had not included consideration of: 1. any drawings of elevations of the concept dwelling design that would have supported the statements in the cl 4.6 written request concerning compliance with relevant height controls; 2. the relevant landscape controls, including deep soil controls that would have supported a statement of compliance with landscaping controls. I note that the relevant controls were not identified in the written request; 3. shadow diagrams that would have supported a statement of compliance in relation to potential impacts on adjoining lots, including in relation to overshadowing impacts. In my assessment, this is also a relevant consideration in relation to an objective relating to the efficient use of land; 4. the potential impacts of the adjoining two storey development on the adjoining lot to the north in relation to amenity outcomes that might be achieved through development of proposed Lot 1. In my assessment, this would also be a relevant consideration in relation to an objective relating to the efficient use of land. 1. the statement in the cl 4.6 request that the "existing tree" (assumed by both Parties and experts in the hearing to be tree T6 on the Subject Site) would be protected, had not been objectively evaluated in relation to the specific tree protection requirements of tree T6. I base this finding on the following points: 1. during the hearing, the Parties expert arborists (Mr Tom Hare for the Applicant and Mr Craig Kenworthy for the Respondent) had agreed that the concept design for the proposed dwelling for Lot 1 intruded into the tree protection zone of tree T6 by some 24%, and that this was a major encroachment into the TPZ of tree T6 under the criteria within Australian Standard AS4970-2009 Protection of trees on development sites (AS4970); 2. while the expert arborists confirmed in their testimony that an elevated pier and beam structure, if adopted by the Applicant, in combination with root mapping for tree T6, could mitigate potential impacts on tree T6, such a design had not been provided within the Applicant's concept design for a dwelling on proposed Lot 1, and as a consequence could not have been considered in the preparation of the Applicant's written cl 4.6 request and the conclusions stated therein; 3. as a consequence of the points above at (i) and (ii) , the Applicant's statement in the cl 4.6 request that the "existing tree" on the Subject Site would be protected was an assertion not based on any objective evaluation of the specific requirements for protection of the tree (that is tree T6), as identified in AS4970. Consequently, it so does not demonstrate achievement of the objective; 1. the statement that adequate stormwater management would be achieved on both proposed Lots was agreed by both Parties in submissions. However, while I accept that adequate stormwater management could be achieved on both proposed Lots, given the conclusions above at [(a)], [(b)] and [(c)], this statement alone cannot demonstrate achievement of the objective; and 2. the Applicant's assertion that adequate open space and parking would be provided on proposed Lot 2 does not demonstrate achievement of the objective because the Applicant's assessment of the adequacy of open space provided on proposed Lot 2 was not objective as it did not give consideration to the potential overshadowing impacts on open space on proposed Lot 2 of the two storey dwelling on the adjacent lot to its north at 68 Kyle Parade. 1. as concerns the second objective, in relation to ensuring that the proposed development does not prevent the orderly development of land, the Applicant relies on the compliance of the proposed development with the provisions of cl 4.1C of KLEP. This clause concerns the subdivision of land on which a dual occupancy has been erected, and relevantly: 1. the Applicant's proposed development is not made in relation to the subdivision of land on which a dual occupancy has been erected under cl 4.1C of KELP; 2. the compliance or otherwise of the Applicant's proposed development with the provision of that clause is, in my assessment, of no relevance to the satisfaction of the objectives of cl 4.1 of KLEP. 3. as a consequence of the matters identified above at (a) and (b), the Applicant's written request under cl 4.6 has not demonstrated achievement of this second objective of the minimum subdivision lot size development standard in cl 4.1 of KLEP. 1. as concerns the third objective in relation to adequate street frontages and dimensions for standard and battle-axe lots, the assertion that the outcomes of the proposed development would match the outcomes of a development under cl 4.1C of KLEP, in relation to street frontages and the areas of each lot: 1. is not, in my assessment, relevant to the fulfilment of an objective under a different clause of KLEP, that being cl 4.1, and therefore does not demonstrate fulfilment of this objective; 1. as concerns the final and fourth objective, concerning ensuring that the intensity of development is appropriate to the land's environmental capability: 1. I repeat my assessment of the various propositions put forward by the Applicant in relation to the first of the objectives under cl 4.1 of KLEP. Because the propositions put forward by the Applicant in relation to this final fourth objective are of a similar nature to those put forward in relation to the first objective, I rely on these reasons to conclude that that the Applicant has not demonstrated achievement of this final fourth objective of cl 4.1 of KLEP. 1. the Applicant's written request prepared under the provisions of cl 4.6 of KLEP has not, in my assessment, demonstrated that the proposed development has achieved the objectives of the minimum subdivision lot size development standard, and so has not demonstrated that compliance with the standard is unreasonable or unnecessary in the circumstances of the case.
8. The Applicant's written also identified the following further points in support of its submission that compliance with the development standard in cl 4.1 of KLEP was unreasonable or unnecessary: 1. the written request said that compliance with the development standard is unreasonable and unnecessary as the proposal will allow for the subdivision and future development of the proposed lots in accordance with the intent of cl 4.1C of KLEP. In relation to this proposition, and in relation to the Applicant's reliance on cl 4.1C of KLEP concerning the second and third objectives of cl 4.1 of KLEP, I note that it is open to the Applicant to lodge a development application relying on the provisions of cl 4.1C of KLEP for the potential subdivision of the Subject Site with a dual occupancy. However, the application before the Court in this appeal is not such an application. 2. the written request said that concept drawings provided by the Applicants illustrated that each lot can accommodate a dwelling of a reasonable amenity in keeping with the development standards and objectives, and was reflective of the current constraints of the Subject Site in terms of tree management and stormwater management. In relation to this proposition I repeat, and rely upon, my assessment of the Applicant's submissions in relation to the objectives of the minimum subdivision lot size development standard (see above at [57]) and confirm that, in my assessment, the proposition has not been demonstrated. 3. the written request said that provision of the lots as proposed would allow for dwellings on each lot that would not result in unreasonable environmental amenity impacts (in terms of overshadowing, loss of views, loss of privacy or loss of visual amenity) on adjoining properties, and on each other. In relation to this proposition I repeat, and rely upon, my assessment of the Applicant's submissions in relation to the objectives of the minimum subdivision lot size development standard (see above at [57]), and confirm that, in my assessment, the proposition has also not been demonstrated.
9. As a consequence of my findings above at [57] and [58] , I conclude that the Applicant's cl 4.6 written request: 1. does not demonstrate that the Applicant's proposed development achieves of the objectives of the minimum subdivision lot size development standard in cl 4.1 of KLEP; and 2. has not demonstrated that compliance with the minimum subdivision lot size development standard is unreasonable or unnecessary in the circumstances of the Applicant's proposed development, as required under cl 4.6(3)(a) of KLEP.

Are there are sufficient environmental planning grounds to justify the proposed development contravening the minimum subdivision lot size development standard?

1. The requirement for an Applicant's cl 4.6 written request to demonstrate that there sufficient environmental planning grounds to justify contravening the standard was also addressed by Preston CJ in Initial Action, in which he said (at [24]) that: "The adjectival phrase "environmental planning" is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EP&A Act, including the objects in s 1.3 of the EP&A Act."
2. The objects of the EP&A Act were provided above at [13].
3. Within Initial Action (at [24]), the Chief Judge also identified that there are two respects in which an Applicants' cl 4.6 written request needs to be 'sufficient' in relation to the environmental planning grounds so as to justify the contravention of a development standard. These are: "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]."
4. The Applicant's cl 4.6 written request posits five reasons as the bases for demonstrating the sufficiency of environmental planning grounds to justify the contravention of the development standard. Those propositions, and my assessment of them, are as follows: 1. the proposed development achieves compliance with the relevant underlying objectives of the standard and the objectives of the zone, 1. which I assess as not being a sufficient environmental planning grounds to justify the contravention of the development standard for the following reasons: 1. compliance with the relevant underlying objectives of the standard, and the objectives of the zone, are matters called up by other parts of cl 4.6 of KLEP, and so are not matters that are pertinent to the specific provisions of cl 4.6(3)(b). They are relevant to the provisions of cl 4.6, specifically cl 4.6(3)(a), and, in part, cl 4.6(4)(a)(i), as well as the public interest under cl 4.6(4)(ii); 2. the demonstration of sufficiency of environmental planning grounds required to justify the contravention of the development standard under cl 4.6(3)(b) should be based on considerations other than those addressed within other provisions of cl 4.6 of KLEP. As Preston CJ noted in Initial Action, they would refer to grounds that relate to the subject matter, scope and purpose of the EP&A Act, including the objects in s 1.3 of the EP&A Act; 3. notwithstanding my findings above at (a) and (b), I have already concluded (see above at ([59]), that the proposed development does not achieve the objectives of the minimum subdivision lot size development standard, contrary to the assertion within the Applicant's cl 4.6 written request. 1. the proposal will allow for the future subdivision and future development of the proposed lots in accordance with the intent of clause 4.1C of KLEP, and will achieve the intent of this development standard to allow for dwellings in accordance with Council's FSR control, 1. which I assess as not being a sufficient environmental planning grounds to justify the contravention of the development standard for the following reasons: 1. as discussed above at [32], the Applicant's proposed development is made pursuant to cl 4.1 of KLEP, and not cl 4.1C of KLEP. 2. as a consequence of (i) above, there is nothing which requires the Applicant to secure a consent under cl 4.1 as a precondition to pursuing a dual occupancy development under cll 4.1B and 4.1C of KLEP. 3. the proposition within the Applicant's cl 4.6 written request that seeks to link its proposed development to the provisions of cl 4.1C is ill-founded, unnecessary and flawed, in my assessment. 4. it remains open to the Applicant to pursue a development application for a dual occupancy development with subdivision under the provisions of cll 4.1B and 4.1C of KLEP, but that is not a development application that comes before the Court in this appeal. 1. the concept drawings provided illustrate that each lot can accommodate a dwelling of a reasonable amenity and in keeping with the development standards and objectives and reflective of the current constraints of the site in relation to tree management and stormwater management, 1. which I assess as not being a sufficient environmental planning grounds to justify the contravention of the development standard for the following reasons: 1. I have already concluded (see above at ([59]), that the proposed development does not achieve the objectives of the minimum subdivision lot size development standard, contrary to the assertion within the Applicant's cl 4.6 written request; 2. I am not satisfied that the Applicant has demonstrated that each proposed lot can accommodate a dwelling of a reasonable amenity, as the Applicant has not undertaken the requisite assessments of amenity, including assessment of the potential impacts of adjacent dwellings on the Subject Site, nor of the landscaping requirements of KDCP that would be required to so demonstrate; 1. provision of the lots proposed will allow for dwellings on each lot that do not result in unreasonable environmental amenity impacts in terms of overshadowing, loss of views, loss of privacy or loss of visual amenity for adjoining properties and each other, 1. which I assess as not being a sufficient environmental planning grounds to justify the contravention of the development standard for the reasons already provided above at [57] and [58]; 1. the proposal will provide allow (sic) for the future development of a lot and this represents the orderly and economic use and development of land which is identified as an object of the Act (Section 1.3 of the EP&A Act), 1. which I assess as not being a sufficient environmental planning grounds to justify the contravention of the development standard because the Applicant has not demonstrated that its proposed development would represent the orderly use and development of land because: 1. the proposed development is not consistent with the objectives of the minimum subdivision lot size development standard; 2. the proposed development has not demonstrated that it would not result in unreasonable environmental amenity impacts, including in relation to overshadowing and landscaping; 3. the proposed development has not demonstrated that it would not result in unacceptable potential environmental impacts, including in relation to potential impacts on trees on the Subject Site;
5. The Applicant's cl 4.6 written request also stated that the two resulting lots, as proposed, would allow development which would not have unreasonable impacts on the amenity of adjoining properties in the locality. It also said that the lack of impacts on adjoining properties, in terms of solar access, privacy, view loss and visual bulk, would represent sufficient environmental planning grounds to justify contravening the development standard.
6. However for reasons provided above at [57], I am not satisfied that the Applicant has demonstrated that its proposed development would not have unreasonable impacts on the amenity of adjoining properties in the locality.
7. Consequently, the Applicant's statement in its cl 4.6 written request that this lack of impacts would represent sufficient environmental planning grounds to justify contravening the development standard is, in my assessment, ill founded.
8. Further, and consistent with my previous judgements in the matters of Peric v Randwick City Council [2018] NSWLEC 1509 and SNL Building Construction Pty Ltd v Lake Macquarie City Council [2019] NSWLEC 1147, I do not accept that the lack of impacts of a proposed development, on its own, can provide sufficient environment planning grounds to contravene a development standard.

Further considerations

1. The Applicant's cl 4.6 written request had sought to rely, in part, on the decision of Preston CJ in Initial Action, at [94(c)], for its conclusion that the lack of impacts on adjoining properties (in this case in relation to solar access, privacy, view loss and visual bulk) would represent sufficient environmental planning grounds to justify contravening the development standard.
2. In this regard, the Applicant quoted Preston CJ in Initial Action at [94(c)], as follows: "… in holding incorrectly in [136] that the lack of adverse amenity impacts on adjoining properties is not a sufficient ground justifying the development contravening the development standard,…"
3. However, as submitted by the Respondent at the hearing, this quote was taken from a broader consideration by His Honour of the consistency of a development with the objectives of a development standard, and not in relation to the sufficiency of environmental planning grounds as the Applicant had submitted.
4. The quote above at [69], was only a part of what His Honour had considered to be one of five ways that the Commissioner in the decision in Initial Action Pty Ltd v Woollahra Council [2017] NSWLEC 1734 had misdirected herself. In that context, a fuller representation of the Chief Judge's quote from Initial Action is more helpful.
5. At [94]: the Chief Judge said: "… I find that the Commissioner did misdirect herself concerning the consistency of the development with the objectives of the height development standard in five ways: …. (c) in holding incorrectly in [136] that the lack of adverse amenity impacts on adjoining properties is not a sufficient ground justifying the development contravening the development standard, when one way of demonstrating consistency with the objectives of a development standard is to show a lack of adverse amenity impacts (see Randwick City Council v Micaul Holdings Pty Ltd at [34])"
6. That fuller quote confirms that the Chief Judge, at [94] of Initial Action, was, in fact addressing a point in relation to the consistency of a development with the objectives of a development standard, and he was not discussing a point concerning the sufficiency of the Applicant's environmental planning grounds in isolation.

Conclusions

1. Based on the above considerations at [60] to [67], I have concluded that the Applicant's cl 4.6 written request, seeking to vary the minimum subdivision lot size development standard in cl 4.1 of KLEP, has not demonstrated that there are sufficient environmental planning grounds to justify the variation proposed as required under cl 4.6(3)(b) of KLEP.
2. The Applicant's cl 4.6 written request has not, in my assessment, demonstrated that: 1. compliance with the minimum subdivision lot size development standard under cl 4.1 of KLEP is unreasonable or unnecessary; 2. there are sufficient environmental planning grounds to justify contravening the minimum subdivision lot size development standard as required under cl 4.6(3)(b) of KLEP.
3. Based on my findings above at [75], I further conclude that the Applicant's written request to vary the minimum subdivision lot size development standard in cl 4.1 of KLEP is not well founded.
4. Therefore, I am not able to be satisfied that the matters required to be demonstrated by cl 4.6(3) of KLEP have been adequately addressed, and nor, as a consequence, can I be satisfied that the proposed development will be in the public interest.
5. For completeness, I note again that the Parties' expert planners agreed within their joint report that the Applicant's proposed development was: 1. consistent with the first of the objectives of the R2 zone in which the Subject Site is located; and 2. was not antithetical to the second (see above at [44]).
6. Nevertheless, as satisfaction in relation to the matters provided in cl 4.6(3) is a precondition in order to enliven the Court's power to grant consent, and as I have been unable to form an opinion of satisfaction in relation to these matters, the Court's powers to grant consent are not enlivened, and I do not have jurisdiction to determine this appeal.
7. As a consequence of my finding at [79], it is unnecessary for me to consider the remaining merits contentions in this matter, and the appeal should be dismissed.

Orders

1. The orders of the Court are: 1. The appeal is dismissed; 2. The exhibits are returned, with the exception of Exhibits A, B, G and 1.

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