SEPP 1 Objection
28It was common ground that the numerical requirement for 60% of landscaped area under cl 20(2) of the 2001 LEP is a development standard. Upholding the SEPP 1 objection is a pre condition which must be satisfied before the proposed development could be approved on its merits: Wehbe v Pittwater Council (2007) 156 LGERA 446.
29The Council's position is that the SEPP 1 objection to compliance with the landscaped area development standard should not be upheld. In the Council's submissions, the SEPP 1 objection does not identify why compliance with the development standard is unreasonable or unnecessary or how compliance would hinder the attainment of the objects in s 5(a)(i) and (ii) of the Act, but rather is based on the acceptability of the proposed development. The Council submits that compliance with the area requirement will be consistent with the objectives of the development standard identified in cl 20(1) of the 2001 LEP. The Council submits that the fact that the proposed development would meet the requirements of the Draft DCP is irrelevant, because that would not fall within any of the purposes for which a DCP can be prepared as provided in s 74C(1) of the Act. The fact that the Draft LEP does not provide a numerical landscape area control is also not relevant, because if the making of the Draft LEP is not imminent and certain, it should be given little weight; and if it is imminent and certain, it should be assumed that it will be made in the form in which it now is, which includes cl 1.8A, and accordingly should be disregarded: Alamdo Holdings Pty Ltd v The Hills Shire Council [2012] NSWLEC 1302.
30The applicant's position is that the SEPP 1 objection is well founded and that granting of consent would be consistent with the aims of SEPP 1, on the basis that strict compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, because the objectives of the standard are met notwithstanding the numerical non-compliance, and would hinder attainment of the objects in s 5(a)(i) and (ii) of the Act, as it would not take full advantage of the site's opportunities and ability to deliver a quality residential flat building providing economic and social benefits for St Leonards, and would unduly restrict the economic viability of the project by reducing yield. Variation from the development standard would be consistent with the Draft Metropolitan Strategy, a matter of State or regional significance, and there is no public benefit in not allowing variation because the proposed development is compliant with existing controls as to height and setback, the development as a whole is acceptable on the merits, the proposed development complies with all the relevant controls in the Draft LEP and Draft DCP, and the development is consistent with the objectives of the zone and the desired future character of the planning area and locality. The applicant relies on the futility of requiring it to lodge a new development application under the new planning controls if the development is otherwise acceptable, which would involve delay in delivering housing stock of the type identified in the planning controls. The applicant submits that the Draft LEP is relevant in the assessment of the public benefit required under cl 8 of SEPP 1, as a publicly exhibited statement of the Council's intentions for the site and the area, and that the approach adopted in Alamdo to cl 1.8A of the Draft LEP is not applicable. The applicant submits that the Draft DCP, having been exhibited as part of a suite of proposed controls, is relevant in assessment of the public interest under s 79C(1)(e) of the Act.
31In Wehbe v Pittwater Council (2007) 156 LGERA 446, Preston CJ held (at [37]-[40]), that the Court must be satisfied of three matters before it can uphold a SEPP 1 objection and grant development consent. Those matters are, first, that the Court is satisfied that the objection is well founded (cl 7 of SEPP 1), which places the onus on the applicant making the objection; secondly, the Court must be of the opinion that granting consent to the development is consistent with the aims of SEPP 1 as set out in cl 3 (cl 7 SEPP 1); and thirdly, the Court must be satisfied that a consideration of the matters in cl 8(a) and (b) of SEPP 1 justifies the upholding of the objection.
32The SEPP 1 objection (exhibit B) took the not uncommon approach of arguing that strict compliance with the development standard is unreasonable or unnecessary because the proposed development will achieve the objectives of the standard notwithstanding the numerical non-compliance. That is the first of the five ways identified in Wehbe in which compliance a development standard might be shown to be unreasonable or unnecessary. As held by Preston CJ, the rationale to this approach is that development standards are not ends in themselves but means of achieving ends, and those ends are environmental or planning objectives:
43. ...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).
33The objectives of the landscaped area control are provided in cl 20(1):
(1) Landscaped area objectives
The specific objectives of the landscaped area controls are to:
(a) promote the character of the neighbourhood, and
(b) provide useable private open space for the enjoyment of residents, and
(c) provide a landscaped buffer between adjoining properties, and
(d) maximise retention and absorption of surface drainage water on site, and
(e) minimise obstruction to the underground flow of water, and
(f) promote substantial landscaping, including trees which will grow to a minimum height of 15 metres, and
(g) control site density, and
(h) minimise site disturbance.
34The SEPP 1 objection addressed each of the objectives in cl 20(1). I am satisfied, based on the arguments provided in the SEPP 1 objection, which were not disputed, that the proposed development achieves objectives (b), (c), (d) (e) and (f). The eastern landscaped area provides private open space suitable for passive recreational use with good solar access; the minimum setback to the eastern boundary is 6m, and the landscaped area provides an acceptable buffer between it and the adjoining property both currently and for any likely future redevelopment of the adjoining land if redeveloped in the future as part of an amalgamated site; the majority of the landscaping is soft and permeable landscaping providing a significant area for surface drainage and absorption on the site; the geotechnical evidence indicates that groundwater occurs well below the excavated level so that the development is not expected to result in any obstruction to underground flow of water; and the landscape plans provide for a variety of substantial trees including a series of Illawarra Flame Trees along Atchison Street and the corner of Oxley Street and Atchison Lane.
35The Council's contentions, and the evidence, focussed on consistency of the development with objectives (a), (g) and (h).
36Considering first objective (a), the planners agreed that the "character of the neighbourhood" is described in the 2002 DCP St Leonards/Crows Nest Character Statement, including the character statement and desired future outcome for the St Leonards Town Centre. The Planning Area character statement notes housing choice in the mix of dwelling sizes and in the range of affordability; public transport as the main form of access to the St Leonards Town Centre; natural light reaching buildings, public places and streets, and additional open space provided for increased residential population; quality built form, including scaling down of buildings from the Forum development landmark towards Willoughby Road, Hume Street and Chandos Street to fit in with lower scale development and to reduce adverse effects on those lower scale areas, and high rise development generally contained by Pacific Highway to the west, Oxley Street to the east and south and Chandos Street to the north; tree planting in private and public spaces and small landscaped areas to provide relief from the built form, and rear lanes used for vehicle access. The St Leonards Town Centre character statement for the desired future outcome for St Leonards Town Centre includes a diversity of development, and makes specific provision for development in the Residential 3 zone, requiring that development complement the physical form of development in the adjoining mixed use areas, generally 5 storey buildings with flat roofs, setback 3m from street frontage and ground level, setback at least 3m to laneway frontage, landscaped areas accessible to all residents and not fenced off into separate courtyards, and laneway fence 900-1200mm high, and vehicle access from laneways only with parking underground.
37Mr Rothe accepted that the site is located in a pocket of residential zoned land with a variety of dwellings from residential flat buildings through to single dwellings, and he accepted that the locality is in transition from low density forms to higher density. The character statement is silent on the quantity of landscaping required, which is addressed in the 2001 LEP, and the numerical requirement applying to all land in the Residential C zone depends on lot size rather than the type of development such as residential flat buildings. In his opinion, consideration of the character of the neighbourhood should be guided by pre-existing development, which includes the two residential flat building developments that comply with the numerical requirement, 107-109 Chandos Street and 59 Atchison Street.
38I agree with Ms Bindon that a focus on two other developments in the locality that are compliant is too limited an approach to objective (a), and that it is relevant that the site is located in an area in transition. I agree with Ms Bindon that the proposed development is consistent with the character statement in the DCP, and in particular with its references to landscaping being "highly urbanised but softened by introduced water and greenery", with tree planting in private and public spaces and small landscaped areas to provide relief from the built form, and accessibility of landscaped areas for all residents. In particular, the location of the proposed development on the intersection of three street frontages, and the retention of existing large street trees, the proposed planting of a number of large trees of similar scale to the building along Atchison Street and Oxley Street, and screen planting along the eastern boundary, assist in promoting the character of the neighbourhood consistent with the character statement. While some of the landscaped areas are private, provided in courtyards of a number of ground floor apartments, the main space along the eastern side of the building is communal and accessible to all residents. I am satisfied that the proposed development meets objective (a).
39Objective (g) requires consideration of site density. The building meets the 5 storey height limit under the 2001 LEP. There is no applicable FSR control. The SEPP 1 objection starts with the proposition that the 2001 LEP and 2002 DCP controls together establish a building envelope for the site, and the landscaped area, height limit and setback controls are the key controls that help establish a desirable envelope for any given site. The SEPP 1 objection argues that the proposed building complies with the minimum setback requirements in the 2002 DCP and with the maximum height standard in the 2001 LEP, and the building is of an appropriate density for the site and locality. Mr Rothe's evidence was that development that provides a compliant level of landscaped area would have a reduced building footprint and accordingly alter the potential density of the development on the site. He accepted that non-compliance with the landscaped area would not per se mean that a development could not meet the objective to "control site density": the SEPP 1 objection would have to be considered, and it would have to be asked whether the density was acceptable or not. Mr Rothe agreed that the bulk and height of the building are appropriate.
40I agree with the Council that factors such as a likely reduced yield on the site if the building were designed so as to meet the landscaped area and still comply with height and setback controls would not ordinarily be relevant in considering whether the objective has been complied with. However, I accept that factors such as consistency with overall residential density in the St Leonards Town Centre, of which the site is part; the sustainability of the density in terms of high level of access to jobs and public transport; satisfaction of key principles of the Residential Flat Building Design Code under State Environmental Planning Policy 65 - Design Quality of Residential Flat Development; and the absence of environmental impacts that might arise from density such as additional building bulk, height or scale as well as extra traffic or population, and potential impacts on visual amenity, views, solar access and traffic generation, are relevant in considering whether the objective has been achieved. Having regard to those factors, I agree with the applicant that the objective of controlling density is met.
41Objective (h) is to "minimise site disturbance". The SEPP 1 objection notes that just over 40% (40.3% or 461.5 sqm) of the site will remain as landscaped area and on which no basement structures will be placed. That portion of the site will not be significantly disturbed, particularly when compared with the majority of the development in the mixed use areas of the St Leonards Town Centre. The definition of "landscaped area" does not include any area occupied by building above ground (such as balcony overhangs) or below ground (such as basement parking areas that extend beyond the above ground walls). In this development, the basement parking areas extend beyond the above ground walls of the building in an easterly direction and consequently reduce the landscaped area by approximately 7-8%, although from the street or apartments above this area appears to be landscaped. The underground lateral extension was chosen because it resulted in a more rational and efficient car park that could be provided over two levels; to pull back the car park and increase the percentage of landscaped area would have meant extending the car park downwards into another basement level, which would have resulted in more excavation and off-site disposal of excavated material and would have added to the cost of the development (and reduced housing affordability). The SEPP 1 objection concludes that the level of site disturbance is therefore acceptable notwithstanding the variation to the landscaped area standard and this objective of the standard is adequately satisfied.
42Mr Rothe's evidence was that development that provides a compliant level of landscaped area would result in less wholesale disturbance of the site. Ms Bindon agreed generally, and commented that while less of the site could be disturbed in a lateral direction, it might be necessary to go deeper to get parking, and that factors such as unit mix, numbers, and parking provision would be relevant. Ms Bindon was of the opinion that the amount of excavation is acceptable and that there is still 40% of the site undisturbed, with good deep soil planting and good absorption.
43The planners agreed that the proposed development meets the setback requirements in the 2002 DCP, and that the location of the site with three street frontages provides an opportunity for planting of larger trees. Based on the view, I accept the evidence of Ms Bindon that the location of the development on the intersection with the three street frontages provides good separation from other development, that there is good separation and landscaping at the eastern boundary, and that the proposed development provides a good level of amenity with little impact on its neighbours. However, it is not sufficient that the proposed development is a good one, or that the level of site disturbance might be regarded as acceptable. A finding that a proposed development is acceptable on its merits does not address the task of considering whether compliance is unreasonable or unnecessary because the objective of the development standard is met: Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46 at [28]; and it is not sufficient merely to point to an absence of environmental harm: Wehbe at [75]. The objective (h) is to "minimise" site disturbance, and on the evidence before me I am satisfied that more of the site would be disturbed for construction of the building and parking for this development than would be the case with a compliant development.
44The SEPP 1 objection further argues that strict compliance would tend to hinder the attainment of the objects in s 5(a)(i) and (ii) of the Act, which are:
(a) to encourage:
(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,
(ii) the promotion and co-ordination of the orderly and economic use and development of land,
45The SEPP 1 objection argues that compliance would mean that the development would not take full advantage of the site's opportunities and its ability to deliver a quality residential flat building which would provide economic and social benefits for St Leonards including the provision of good quality housing near jobs, services and public transport. In addressing object (ii), the SEPP 1 objection argues that the orderly and economic use of the site would be realised with approval of this development whereas compliance would unduly restrict the economic viability of the project by reducing significantly the density or yield on the land even though that density is demonstrably acceptable in its context; and that the achievement of the orderly development of the land and the wider objectives of the Residential zones as expressed in cl 16 of the 2001 LEP would also therefore be thwarted.
46I agree with the applicant that the proposed development provides the type of dwelling identified in objective (a)(iv) in cl 16, and for the reasons above I am satisfied that it would also meet objectives (b), (c) and (d). The difficulty with accepting the applicant's position based on yield, however, is that a compliant development, which would require a reduction in the number or size or possibly alteration in the mix of units while still meeting the height and setback controls, would also meet the objectives in cl 16, and attain the objects in s 5(a)(i) and (ii) of the Act. There is no evidence before me to suggest that a reduced development that complied with the landscaped area requirement would not be economically viable. I am not persuaded that a potential reduced density or yield for a residential flat building on the site would of itself hinder the attainment of the objects in s 5(a)(i) and (ii).
47The SEPP 1 objection raises, as aspects of the public benefit in maintaining the development standard, the following factors:
- the removal of the development standard in the forthcoming Draft LEP;
- the inclusion of a similar replacement control in the Draft DCP;
- the fact that the applicant could lodge a new development application as soon as the Draft LEP is made and achieve full compliance with the new controls, which simply incurs unnecessary delays and cost to the applicant for no sound environmental planning reason. The resubmitted development application would comply with all the new relevant planning controls, without changing the design or affecting the uncontested merits of the proposal, and it is unreasonable and unnecessary to impose further process for no material public benefit or change to the environmental outcome.
48The 2013 LEP has been published, and cl 1.1AA provides a defined and limited period for the continued application of the 2001 LEP controls. That may affect consideration of whether the granting of consent would be consistent with the aim of SEPP 1, being to provide flexibility in the application of planning controls in circumstances where strict compliance would be unreasonable or unnecessary (where the proposed development achieves all but one of the eight objectives of the development standard) or tend to hinder the attainment of the objects in s 5(a)(i) and (ii) of the Act (where additional delays and costs for both applicant and Council would be incurred for an otherwise acceptable development). I note that in Wehbe (at [52]), Preston CJ held that the requirement that the consent authority form the opinion that granting consent is consistent with the aims of SEPP 1 as set out in cl 3 "makes it relevant 'to consider whether consent to the particular development application encourages what may be summarised as considered and planned development' or conversely may hinder a strategic approach to planning and development". That is a matter on which, in fairness, the parties should have the opportunity to make submissions before a determination is made as to whether the SEPP 1 objection should be upheld.