Kingsford Property Developments v Randwick City Council

The proposal

1. The application proposes demolition of all existing site improvements, construction of two, two storey semi-detached dwellings and Torrens Title subdivision.
2. Each dwelling would have frontage to Anzac Parade and contain a two car garage in tandem arrangement, laundry, an open plan living/dining/kitchen area at the rear and a guest bedroom with bathroom on the ground floor level. A partly covered deck with barbeque area runs along the rear of each dwelling with setbacks from the rear boundary ranging from 8.07m to 9.62m. Front setback at the ground floor ranges from 9.12m to 9.835m.
3. Four bedrooms, two with ensuite, a study area, bathroom and living area would be provided at the first floor level.
4. Architectural elements have been introduced on the upper floor that creates a shadow line above the garages. These take the form of a Juliet balcony to the northern dwelling, privacy screens, columns and roof. The projection is approximately 445mm.
5. Individual driveways off Anzac Parade would service each dwelling however, to meet the requirements of Roads and Maritime Services (RMS), reciprocal rights of way across a portion of the front setback area are required to provide sufficient turning area to allow for forward movement of vehicles onto and from the site.
6. It is proposed to subdivide the existing lot into two lots, proposed Lots 1 and 2. Proposed Lot 1 would be the northern lot and would have a frontage of 6.1m, northern side boundary of 43.345m, common and southern boundary of 43.965m and rear boundary of 11.675m. Its site area would be 395.3m2.
7. Proposed Lot 2 is the southern lot and would have a frontage of 6.14m, northern (common) boundary of 43.965m, southern boundary of 42.945m, rear boundary of 11.55m and site area of 381.32m2.

The planning controls

1. The site is zoned R2 Low Density Residential under the provisions of Randwick Local Environmental Plan 2012 (LEP). Semi-detached dwelling is defined in the Dictionary to that plan as: semi-detached dwelling means a dwelling that is on its own lot of land and is attached to only one other dwelling.
2. Semi-detached dwellings are permitted with consent in the R2 zone subject to compliance with other relevant provisions of the LEP. Subdivision is also permitted with consent pursuant to the provisions of cl 2.6 of the LEP.
3. Clause 2.3 of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. • To protect the amenity of residents. • To encourage housing affordability. • To enable small-scale business uses in existing commercial buildings.
4. Part 4 of the LEP contains Principal development standards with cll 4.1 Minimum subdivision lot size, 4.3 Height of buildings and 4.4 Floor space ratio (FSR) relevant to the determination of the application.
5. Clause 4.1 of the LEP requires a minimum lot size for subdivision of 400m2. The proposed lots do not comply with that development standard and the Applicant relies on the provisions of cl 4.6 and seeks to vary that standard.
6. Clauses 4.1AA Minimum subdivision lot size for community title schemes, 4.1A Minimum subdivision lot size for strata plan schemes in Zone R2, 4.1C Minimum lot size for dual occupancies (attached) and 4.1D Subdivision of dual occupancies (attached) in Zone R2 distinguish the form of the development proposed from semi-detached dwellings. That is because the effect of these clauses, whilst permitting an attached dual occupancy development on the site (450m2 minimum site are required), the subdivision of such a development, whether Torrens Title, Community Title or Strata Title, would be prohibited unless the dual occupancy (attached) was the subject of a development consent granted prior to 6 July 2018 or the lots created by that subdivision have a minimum site area of 400m2.
7. The proposal is consistent with the development standards for Building height and FSR and therefore these standards do not form contentions in the case.
8. Randwick Development Control Plan 2013 (DCP) applies to the site with Parts A, B and C relevant to the application. Part C - Residential contains the relevant controls for assessment of the application with section C1 Low Density Residential guiding the anticipated form that the development should take. Section 2 Site Planning repeats the minimum lot size provisions prescribed in the LEP and contains the following objectives: "• To ensure land subdivision respects the predominant subdivision and development pattern of the locality. • To ensure land subdivision creates allotments that have adequate width and configuration, to deliver suitable building design and to maintain the amenity of the neighbouring properties."
9. Control (i) requires a minimum frontage width for allotments resulting from the subdivision of land within Zone R2 for the purposes of dwelling houses and semi-detached dwellings of 12m. The existing frontage of the site is 12.24m and the proposed lot frontages are 6.1m and 6.14m so are around half the width required by the control.
10. Section 3.3 Setbacks establishes building setbacks. It is common ground that the proposal complies with front and side setback controls however it is not agreed that the rear setback control is met. Section 3.3.3 is in the following form: "Controls i) The minimum rear setback must be 25% of allotment depth or 8m, whichever is the lesser. Note: Rear setback controls do not apply to corner allotments. ii) Provide increased rear setbacks over and above the aforementioned minimum requirements, or demonstrate that this is not required, having regard to the following matters: - Existing predominant rear setback line in the subject urban block. - The need to achieve reasonable view sharing with the neighbouring dwellings and the public domain. - The need to adequately protect the privacy and solar access to the neighbouring dwellings. iii) Garages, carports, outbuildings, swimming or spa pools, above-ground water tanks, and unroofed decks and terraces attached to the dwelling may encroach upon the required rear setback, in so far as they comply with other relevant provisions of this DCP."
11. The parties agree that the minimum setback of 8m is met, however the Council contends that the qualitative provisions of ii) are not met and that a greater setback is required having regard to the predominant rear setback line in the subject block.
12. Section 6 Car Parking and Access is also relevant to the design contentions in the case; the section contains the following objectives: "• To ensure car parking and access facilities do not visually dominate the property frontage or streetscape. • To ensure parking facilities are integrated with the architectural expression of the dwelling as an integrated element. • To minimise hard paved surfaces occupied by driveways and parking facilities, and maximise opportunities for deep soil planting and permeable surfaces for stormwater infiltration. • To ensure the location and design of parking and access facilities do not pose undue safety risks on building occupants and pedestrians. • To ensure the location and design of parking and access facilities do not adversely impact on the amenity of neighbouring properties."
13. Control i) in Section 6.5 is relevant to a contention in the case and is in the following form: "Garages must be recessed behind the front façade alignment of the dwelling on both the primary and secondary street elevations."

The issues

1. The contentions in the case are whether the Applicant's written request to vary the minimum lot size development standard prescribed for the site under cl 4.1 of LEP should be upheld, whether the width of the proposed lots is acceptable given that these are less than the width required under the controls in cl 2.1 of Part C1 of DCP and whether the form of the development is suitable given the general design principles in the DCP, in particular with regard to setbacks to the garages and the rear wall of the dwellings.

The evidence

1. Expert town planning evidence was heard from Mr A Darroch for the Applicant and Mr W Jones for the Council.
2. The experts agree that the proposed breaches of the minimum lot size development standard are 1.17% 395.3sqm (Lot 1) and 4.67% 381.32sqm (Lot 2). Whilst they agree that the written request addresses the matters required under cl 4.6(3), Mr Jones says the proposal is not in the public interest as it is inconsistent with the objectives of the R2 zone. That is because the precinct, being the block bound by Forrest Street to the north and Kenny Avenue to the south, is considered to be a precinct undergoing transition as evidenced by the application and given there are numerous dwellings that have not been developed to their full potential in accordance with current controls. Therefore, he says regard must be had to the desired future character of the area. He acknowledges that there are existing allotments within the block that are less than the current minimum lot size however says they were created prior to gazettal of the LEP and do not reflect the desired future character (DFC) as set by current controls. He says the proposed non-compliant lot sizes do not contribute to the desired future character of the area as they are not consistent with the desired future subdivision patter, being compliant lot sizes.
3. Mr Jones acknowledges that the proposed lots are less than the minimum lot size requirement due to the narrow frontage afforded by the bend in Anzac Parade however says this does not justify subdivision of the site into two smaller allotments as the resulting lot widths do not comply with the minimum 12m lot width requirement, and will be less than any other allotment within the subject block (the current smallest lot width is 7.54m associated with 33 Mawson Parade). 34 of the 59 lots in the block (57% of the existing lots) have frontages greater than 12m. The site is therefore not suitable for the proposed subdivision due to the resulting lot sizes and widths and subsequently, the subdivision will not contribute to the DFC of the area.
4. Mr Darroch disagrees and says that whilst the lots are 4.7sqm and 18.6sqm below the minimum lot size they achieve the objectives of the standard notwithstanding non-compliance with that standard. He relies on the written request he prepared seeking variation of that standard. He says the proposed subdivision will not be responsible for any increased external amenity impacts above and beyond that of compliant lots, the proposed development is comfortably compliant with the LEP height control FSR control and does not adversely impact on the amenity of adjoin and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views. He says the predominant subdivision and development pattern is of semi-detached dwellings on Torrens Title lots, the predominant majority of which are less than 400m2 in area and well below 12m in width and mostly comprise 7.5m to 8.5m frontage widths. The proposal provides for consistent semi-detached development with consistent frontage widths.
5. In relation to the DCP controls, Mr Darroch says the proposed development provides for compliant front, rear and side setbacks, complies with the minimum landscaped area, maximum site coverage, minimum private open space requirement and solar access provisions. He considers that the proposal provides for a bulk and scale which would not give rise to visual impacts, that there are no significant view impacts that arise nor any adverse environmental impacts in respect to overshadowing, traffic, heritage, wind, reflectivity, stormwater, flooding, noise, waste, economic and social impacts.
6. The experts agree the solar diagrams indicate that the neighbouring property to the south will receive compliant solar access. They also agree that visual privacy impacts can be addressed via conditions for privacy screening and by reducing the size of the upper floor, rear facing balconies of the secondary living area. Draft condition 2 (a) has been agreed to address this contention in part however Mr Jones says the upper floor balconies off the living areas should also be reduced in width by 1m to respect the predominant rear setback line and comply with the terms of clause 3.3.3 of the DCP. Mr Darroch says that because the setback exceeds the 8m control in the DCP, no further setback is required.
7. Mr Jones says the proposed garages are not sufficiently located behind the front façade of the dwellings and therefore dominate the frontage, which does not contribute to the DFC of the area.
8. Mr Darroch says the proposal is modest and fully compliant with the development controls which apply to the site so consequently must be consistent with the DFC and intensity of development in this locality. The ground floor is recessed 400mm from the upper level creating a shadow line which, together with the change in materials proposed, would ensure that the garages do not dominate and that the parking facilities are located behind the front façade alignment. Mr Jones says the garages remain a dominant feature of the design, extending beyond the front wall and front entrance doors of the respective dwellings and occupying the majority of the street frontage width of the narrow lots proposed. He considers this can be resolved by providing a further 1m from their proposed position so that the garages become more visually recessive and less dominant. His position during the hearing accepted a reduced setback of 0.5m. Draft condition 2(c) reflects his suggestion however this is not accepted by the applicant.
9. The experts disagree as to whether the proposal will encourage the provision of housing mix, tenure choice and affordability. Mr Darroch says the proposal provides a variety of housing types in an area which is undergoing a transition in housing stock from single dwellings to semi-detached dwellings and encourages housing affordability by providing for two dwelling on land where one currently exists making efficient and effective use of the land resource. He says land cost is the most important issue in affordability. He does not consider there is any evidence that an attached dual occupancy under one ownership would be any more successful than the proposal in meeting the objectives of the zone or the aims of the LEP. He says this form of development would not be viable.
10. Mr Jones agrees that the provision of two dwellings on the site will contribute to housing mix and affordability but argues that an attached dual occupancy would be under one ownership providing the opportunity for more affordable housing due to the restricted FSR controls that apply to that form of development. He says the proposal removes the opportunity for more suitably sized and affordable housing stock on the site that is envisaged by the LEP due to the existing size of the site.

The clause 4.6 objection

1. Clause 4.6 of the LEP imposes a precondition to a consent authority exercising the power to grant consent to development on land to which the clause applies and if I am not satisfied that the provisions of the clause are met, consent cannot be granted. The Applicant relies on these provisions as the proposed subdivision does not meet the minimum lot size development standard. A written request has been prepared by Mr Darroch for the Applicant.
2. Clause 4.6 is in the following form: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence…
3. This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3) and the fourth, that 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. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.
4. Preston CJ has provided guidance on the application of clause 4.6, most recently in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118. A number of preconditions are identified, the first, in cl 4.6(4)(a), is that the consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii).
5. These two matters are summarised at [15] and [23] of that decision as follows: "15. The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant's written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters. 23. As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase "environmental planning" is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act."
6. In Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Preston CJ sets out five ways of demonstrating that compliance with a development standard is unreasonable or unnecessary. They are: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose is not relevant to the development with the consequence that compliance in unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; 4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consent departing from the standard; 5. the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary is applied to the land.
7. The written request relies on the first provision.
8. The objectives of the R2 zone are detailed at [19]. The objectives of the minimum subdivision lot size development standard are: (a) to minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties, (b) to ensure that lot sizes allow development to be sited to protect natural or cultural features, including heritage items, and to retain special features such as trees and views, (c) to ensure that lot sizes are able to accommodate development that is suitable for its purpose.
9. In his written request, Mr Darroch says that objectives (a) and (c) are met with (b) not relevant to the application. The following is a summary of his consideration:

• The proposed subdivision will not be responsible for any increased external amenity impacts above and beyond that of a compliant lot.
• The proposed development is comfortably compliant with the LEP height and FSR controls therefore the bulk and scale and intensity of development is consistent with the controls and the DFC for the area.
• The development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.
• The proposed development provides for compliant front, rear and side setbacks.
• The proposed development comfortably complies with the minimum landscaped area and private open space controls in the DCP.
• The proposed development satisfies the DCP solar access requirements for the neighbouring properties and the occupants of the site.
• The proposal provides for a bulk and scale which would not give rise to visual impacts.
• No significant view impacts arise from the proposed development.
• The proposal is consistent with the relevant environmental planning instruments and does not give rise to any adverse environmental impacts in respect to overshadowing, traffic, heritage, wind, reflectivity, stormwater, flooding, noise, waste, economic and social impacts.
• The proposed subdivision provides for a pair of semi-detached dwellings each comprising five bedrooms and generous living spaces with direct access to generous outdoor private open space. The dwellings are 296m2 and 287m2 respectively and given the high level of compliance with the planning controls must be seen as development which is suitable for purpose and satisfying objective (c).

1. With regard to environmental planning grounds, Mr Darroch says that the existing allotment has an area by survey of 776.62m2 and is located on the radius of a bend in Anzac Parade such that the lot has been tapered so that the front boundary to Anzac Parade is 12.24m and the rear western boundary is 23.22m. By contrast the surrounding allotments do not have this unique site characteristic and are generally regular in shape and equidistant in frontage.
2. It is only but for this unique site constraint of being located on the radius of the bend in Anzac Parade that the subject site has a reduced frontage. It is a function of the site being the central 'knuckle' in the subdivision of this block that the allotment does not achieve the additional 23.38m2 and is in fact well in excess of the rear allotments of the subdivided semi-detached dwelling to the north and south of the site. The tapers on the side boundaries are such that the width of the site increases at the building line of the proposed dwelling to almost 15m where it is able to comfortably accommodate the development.
3. While the DCP frontage control of 12m is not met, Mr Darroch says that the predominant subdivision and development pattern is of semi-detached dwellings on Torrens Title lots the predominant majority of which are less than 400m2 in area and well below 12m in width and mostly comprise 7.5m to 8.5m frontage widths.
4. The proposal provides for consistent semi-detached development with consistent frontage widths and the investigation of the development being suitable for purpose demonstrates that it is consistent with the objective of delivering suitable building design.
5. Mr Darroch concludes the environmental planning grounds advanced by the Applicant are that it is only but for this unique site constraint of being located on the radius of the bend in Anzac Parade that the site has a reduced frontage. It is a function of the site being the central 'knuckle' in the subdivision of the block that the allotment does not achieve the additional 23.38m2 which would result in compliant lots. Because he says the proposed development satisfies the relevant planning controls and objectives he contends there are sufficient environmental planning grounds to justify contravention of the development standard and better allows the subdivision of the site to achieve the DFC of the locality as compared to the do nothing scenario.

Conclusion and findings

1. For consent to the granted firstly, I must be satisfied that the Applicant's written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3).
2. Whilst I am satisfied that the reasons advanced for the first test, that is that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case are adequate, I am not satisfied that the request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard for minimum lot size.
3. That is because the request relies on the fact that the lot is located at a bend in Anzac Parade or the 'knuckle' of the subdivision as described. I do not consider that this fact along with the development's compliance with the planning controls is sufficient to justify contravention of the development standard in the circumstances of the case. The location of the site at the bend is not a 'unique' circumstance, particularly having regard to the subdivision pattern in the locality. The block bounded by Anzac Parade, Forrest Street, Mawson Parade and Kenny Avenue is not regular and as a consequence the subdivision pattern is also not regular. Whilst there are a number of regular lots there are also a number of lots that are fan shaped including the site, lots that are shaped like a rhombus and some diamond shaped.
4. I accept, as considered by Pain J in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 that the word "environment" is defined in the Environmental Planning and Assessment Act 1979 to mean "includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings". Therefore, I should have regard to the surroundings however, I do not consider that the shape of a lot or its location along a section of road constitute sufficient environmental planning grounds to justify variation of the development standard.
5. There are many allotments that are not regular in shape or are located at a bend or 'knuckle' in a road. That fact is not sufficient to justify variation of lot size. Even when assessed against the subdivision pattern of the immediate locality, the range of lot sizes and shapes is varied and whilst the site in its unsubdivided form is the largest in terms of area in that block it is not the only lot that is narrower at its frontage than along the rear boundary. Similarly, there are a number of fan shaped lots that have wider frontages than rear boundaries. For that reason, I do not accept that the site is 'unique' or that the location, geometry or frontage width constitutes sufficient environmental planning grounds to justify contravention of the standard for minimum lot size.
6. For these reasons, I am not satisfied that the written request has adequately addressed whether there are sufficient environmental planning grounds to justify contravening the development standard. Accordingly, the application must fail.
7. In the event that I am wrong in this determination, I will turn to the merit issues that remained in dispute in order that a just, cheap and quick resolution of the matter can result.
8. I agree with Mr Jones that the proposed garages are a dominant element in the design of the development and do not satisfy the DCP objective of ensuring car parking and access facilities do not visually dominate the property frontage or streetscape or the control that requires garages to be recessed behind the front façade. The plans propose a Juliet balcony attached to the façade of the northern dwelling and a decorative boxed section defining the upper floor of the southern dwelling. The window line and walls of the upper floor are directly above the walls and garage doors and therefore, as these elements form the façade of the dwellings, inadequate recessing is provided and the Council's draft condition should be enforced.
9. The experts agree that the balconies to the upper floor rear bedrooms should be deleted and I accept Mr Darroch's evidence that the rear setbacks are acceptable subject to the deletion of those balconies. No further reduction in the balconies to the living area is required.

Orders

1. The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. DA/132/2018 for demolition of all structures, construction of 2 x 2 storey semi-detached dwellings with garages, fencing, landscaping and associated works and Torrens title subdivision at Lot 10 in DP 36595 No. 1289 Anzac Parade, Chifley is refused consent. 3. The exhibits, other than Exhibits A and 1, are returned.

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