McKinnon v Canterbury-Bankstown Council

Texts Cited: NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020

Category: Principal judgment

Parties: Christine Winsome McKinnon (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation: Counsel:
S Griffiths (Solicitor) (Applicant)
C Ireland (Respondent)
Solicitors:
Bartier Perry Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s): 2024/208033

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Christine Winsome McKinnon (the Applicant), against the refusal of Development Application DA-1627/2023 (the DA) by Canterbury-Bankstown Council (the Respondent).

2. At the date of its lodgement on 21 December 2023, the DA sought consent for demolition of existing on-site structures and construction of an attached two-storey dual occupancy and associated Torrens Title subdivision, at 7 Oswald Street, Campsie (the site).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 February 2025. I presided over the conciliation conference.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent which included issues of permissibility, exceedance of the development standard for floor space ratio (FSR), inconsistency with the prevailing streetscape character, inappropriate building form and bulk, inappropriate front setback, and potential impacts of inadequate solar access, amongst other contentions.

6. Agreed design amendments have been made to increase the proposed building articulation as it addresses side boundaries, to increase the front setback to the street, and to improve internal amenity and solar access. Additionally, the parties are agreed that the earlier contention relating to permissibility is now resolved, acknowledging that relevant statutory planning provisions do not prohibit the development of dual occupancy dwellings on the site.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. The DA was publicly notified from 3 January to 28 January 2024. One submission was received by the Respondent raising concerns for:

11. Overshadowing impacts on private space and living areas within neighbouring dwellings.

12. Acoustic and visual privacy impacts arising upon neighbouring properties.

13. Excessive FSR and associated building bulk.

14. A number of these concerns are reflected in the Respondent’s contentions and were resolved during the conciliation.

15. The parties agree, and I am satisfied, that the amended DA and conditions of consent now satisfactorily address the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

16. The parties agree, and I am satisfied, that the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP) is the relevant local environmental planning instrument. The site is zoned R4 High Density Residential. The amended DA - characterised as attached dual occupancy dwellings - is not a nominate form of development within the R4 zone, however cl 2.5(1) of the CBLEP, read in conjunction with Sch 1, cl 27, makes the amended DA permissible on the site.

17. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the CBLEP, the amended DA is consistent with the relevant R4 High Density Residential zone objectives which include:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To allow for increased residential density in accessible locations to maximise public transport patronage and encourage walking and cycling.

• To promote a high standard of urban design and local amenity.

15. The parties agree, and I am satisfied, that pursuant to cl 2.6 of the CBLEP, subdivision is permissible with consent, and Torrens Title subdivision is sought within the amended DA.

16. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the CBLEP, consent is required to carry out demolition, and accordingly consent for demolition of existing structures is sought within the amended DA.

17. The parties agree, and I am satisfied, that the amended DA complies with cl 4.1 of the CBLEP - Minimum subdivision lot size - since:

18. The site has an area of 613.1sqm.

19. The width of the site at the front building line is 15.24m.

20. Each proposed dwelling will have a frontage to Oswald Street.

21. The parties agree, and I am satisfied, that the amended DA complies with cl 4.1A of the CBLEP - Minimum lot sizes and special provisions for dual occupancies - since:

22. Each resulting lot will be greater than 300sqm in area, with the two lots proposed to have site areas of 306.53sqm and 306.57sqm.

23. There will be only one dwelling on each lot created.

24. The parties agree, and I am satisfied, that all other principal development standards of the CBLEP have been met by the amended DA.

25. However, despite the height of building and FSR development standards set out at cll 4.3 and 4.4 of the CBLEP, the amended DA is also subject to the provisions of Sch 1, cl 27 of the CBLEP, which provide that development for the purposes of a dual occupancy is permitted with consent if:

26. The FSR does not exceed 0.5:1.

27. The height of the building does not exceed 8.5m.

28. The amended DA proposes a maximum height of building of 8.5m (and thereby complies).

29. The amended DA proposes a FSR of 0.6:1. The parties agree, and I am satisfied, that the provisions at Sch 1, cl 27 of the CBLEP are development standards amenable to variation pursuant to cl 4.6.

30. In such an instance, cl 4.6(3) of the CBLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

31. Clause 4.6(4) of the CBLEP requires the consent authority to be satisfied that the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

32. Additionally, cl 4.6(4)(b) of the CBLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter.

33. As required by cl 4.6 of the CBLEP, the Applicant has provided a written request seeking to vary the Dual Occupancy FSR development standard, prepared by Kim Burrell and lodged with the Court on 17 February 2025.

34. Pursuant to Sch 1, cl 27 of the CBLEP, the site is subject to a dual occupancy FSR development standard of 0.5:1. The amended DA proposes an FSR of 0.6:1, exceeding the development standard by 61.33sqm and representing a variation of 20%.

35. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the dual occupancy FSR development standard for the following reasons:

36. The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape of the immediate locality.

37. The site is an isolated parcel of land that has existing multi-dwelling developments adjoining to both the northern and southern sides and to the west.

38. The site does not meet minimum frontage requirements for residential apartment development and accordingly, dual occupancy development increases density of housing on the land consistent with land zoned R4 High Density Residential.

39. Although the amended DA does not comply with the 0.5:1 FSR standard, the proposed FSR of 0.60:1 is agreed to be acceptable and consistent with adjoining residential apartment buildings and townhouses with have significantly higher FSR.

40. The relevant objectives of the CBLEP Zone R4 High Density Residential land use zone include to provide for the housing needs of the community within a high density residential environment; to provide a variety of housing types within a high density residential environment; to minimise conflict between land uses within this zone and land uses within adjoining zones; to allow for increased residential density in accessible locations to maximise public transport patronage and encourage walking and cycling; and to promote a high standard of urban design and local amenity. I am satisfied the amended DA meets these objectives.

41. Although Sch 1, cl 27 is not accompanied by objectives, those set out at cl 4.4 - FSR - of the CBLEP include to establish the bulk and maximum density of development consistent with the character, amenity and capacity of the area in which the development will be located; to establish the maximum floor space available for development, taking into account the availability of infrastructure and the generation of vehicular and pedestrian traffic; and to provide a suitable balance between landscaping and built form in residential areas. I am satisfied the amended DA meets these objectives.

42. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the dual occupancy FSR development standard, and I find to uphold the written request.

43. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the CBLEP - Acid sulphate soils - the site is mapped within an area classified as Class 5 Acid Sulfate Soils. Works are proposed within 500m of adjacent Class 4 land, but does not involve works below 5m Australian Height Datum (AHD) or works by which the water table is likely to be lowered below 1m AHD. Therefore, the amended DA does not require an acid sulphate soils management plan.

44. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the CBLEP - Earthworks - the extent of proposed excavation works are considered to be minor and limited to footings and foundations.

45. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the CBLEP - Stormwater management and water sensitive urban design - the amended DA includes appropriate measures to maximise the use of water permeable surfaces on the site, harvests rainwater for use as an alternative to mains water, and avoids significant adverse impacts of stormwater runoff.

46. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Pursuant to s 4.6 of SEPP Resilience, I am satisfied that the long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated.

47. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

48. Chapter 2 of SEPP BC deals with vegetation in non-rural areas. The parties agree, and I am satisfied, that the amended DA proposes the removal of vegetation and requires appropriate consideration of the matters set out at s 2.10 of SEPP BC. Agreed conditions of consent are imposed to protect retained existing trees.

49. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021, a BASIX certificate, No 1374170M dated 30 October 2023 has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

50. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

51. The Court notes that:

52. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

53. The Applicant has lodged the amended DA with the Court on 12 and 17 February 2025.

Orders

39. The Court orders that:

40. Leave is granted to the Applicant to amend Development Application DA-1627/2023 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

41. The Applicant’s written request, pursuant to cl 4.6 of the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP), seeking to vary the development standard for floor space ratio as set out at Sch 1, cl 27 of the CBLEP, is upheld.

42. The appeal is upheld.

43. Consent is granted to Development Application DA-1627/2023 (as amended) for demolition of existing structures and construction of an attached dual occupancy and subdivision at 7 Oswald Street, Campsie, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

Architectural Plans

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Amendments

02 April 2025

Correction made to the Respondent's Counsel.