Meta v Fairfield City Council

Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438; CASES CITED: Memel Holdings Pty Limited v Pittwater Council (2000) 110 LGERA 217; Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

APPLICANT Mr C Gough (solicitor) SOLICITOR LEGAL REPRESENTATIVES: Storey & Gough RESPONDENT Ms S Brew (solicitor) SOLICITOR MatthewsFolbigg

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Her Honour: This is a Class 1 appeal against the refusal by Fairfield City Council ("the Council") of a two-lot subdivision to enable the erection of two, two-storey dwelling houses, one on each lot. 2 The site is Lot 4 DP 421148, known as 89A Neville Street, Smithfield. The site is a battleaxe block with an access handle of 51m and a width of 4m. The remainder of the block is rectangular in shape, with a length of 48.77m and a width of 20.115m. The total area of the site is approximately 1110.4m. 3 Presently erected on the site is a single-storey fibrous clad, metal roofed dwelling and an attached carport. The site slopes to the south and has approximately 13 trees located upon it. 4 The surrounding locality is characterised by one and two-storey detached dwellings of various sizes and architectural styles. There is a large two-storey dwelling on the adjoining property to the west, a single-storey dwelling to the east and single-storey dwellings on either side of the access handle leading to the subject site. The Court conducted a view of the site during the hearing.

The Proposal 5 Development Application No 2165/2004 ("the DA") was lodged on 29 December 2004 for the subdivision of an existing lot into two lots and the erection of two two-storey dwellings and attached garages on each lot. The proposal is to subdivide an existing battleaxe block into two lots in a further battleaxe arrangement. The front, northern block is approximately 410.5m2 and the rear, southern block is approximately 450m2 (both measurements exclude the proposed right of way). 6 The right of way to the parent lot is approximately 52m in length and 4m in width. The right of way proposed to service the proposed lots is a further 26.5m in length and is 3.5m in width. 7 The proposed two-storey dwellings and attached garages mirror one another and have similar layouts. The dwellings are to consist of four bedrooms, one ensuite, one bathroom, separate toilet, living room, combined rumpus/dining room, kitchen, laundry and double garage. Both dwellings are approximately 230m2. 8 The proposed dwelling located on the front, northern block has a floor space ratio of 47.4 per cent. It has a height of 7.788m to the ridge and 5.5m to the underside of the eaves. The proposed dwelling is set back 6.8m from the northern boundary, 1.3m from the eastern boundary, 3.953m from the southern boundary and 3.6m from the western boundary/right of way. 9 The proposed dwelling located on the back, southern block has a floor space ratio of 43.3 per cent. It has a height of 7.831m to the ridge and 5.5m to the underside of the eaves. The proposed dwelling is set back 1.52m from the northern boundary, 1.3m from the eastern boundary, 5.205m from the southern boundary and 7.117m from the western boundary. 10 Stormwater from the site must be diverted along an easement which needs to be created on the rear lot at 4 Cahill Street, Smithfield. If development consent is granted an application under s 40 of the Land and Environment Court Act 1979 ("the Court Act") would be made in relation to that easement. A deferred commencement condition is therefore necessary if consent is granted so that the development is conditional on that application being successful.

Issues 11 Some of the issues identified originally by the Council were no longer pressed at the hearing. The Council's statement of issues relevantly raised the following issues.

Issue 1 12 Whether the proposed development is unacceptable pursuant to s 5(a)(ii) and s 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and relevant planning principles with respect to:

1.1 Minimum allotment sizes The proposed development is contrary to cl 22A of the Fairfield Local Environmental Plan 1994 ("the Fairfield LEP") in that the subdivision would result in an allotment which fails to comply with the development standard requiring created allotments to have a minimum area of 450m2. Proposed Lot 4A would have an area of 410.57m2.

1.2 SEPP 1 objection to cl 22A The objection submitted under State Environmental Planning Policy No 1 - Development Standards ("SEPP 1") is not well founded and the Applicant has not discharged its onus of demonstrating why discretion ought be exercised in its favour to uphold an objection made under cl 6 of SEPP 1 on the grounds that compliance with the development standard imposed by cl 22A of the Fairfield LEP is unreasonable and unnecessary in the circumstances of the case. Relevantly the principles enunciated in Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438, Memel Holdings Pty Limited v Pittwater Council (2000) 110 LGERA 217 and Winten Property Group v North Sydney Council [2001] NSWLEC 46 have not properly been addressed in the objection. 13 Because the objection is not well founded the granting of consent to the proposed development would not be consistent with the aims of cl 3 of SEPP 1 and would result in an outcome that would tend to hinder the attainment of the objective of s 5(a)(ii) of the EP&A Act which seeks to encourage "the promotion and co-ordination of the orderly and economic use and development of land".

Issue 2 14 Whether the proposed development is unacceptable pursuant to s 5(a)(ii) and s 79C(1)(a)(iii) of the EP&A Act and relevant planning principles with respect to: 2.1 Lot size - cl 5.1.1 of the Fairfield City Wide Development Control Plan 2006 ("the Fairfield DCP") The proposed development is contrary to the Fairfield DCP in that the subdivision would result in an allotment which fails to comply with the development standard requiring created allotments to have a minimum area of 450m2.

Proposed Lot 4A would have an area of 410.57m2 which compromises the attainment of the objectives of the Fairfield DCP to ensure privacy is maximised for neighbours of the development and those who occupy the single dwelling, provide space for private recreation purposes and provide space for landscaping. 2.2 Side setback - cl 5.2.1 of the Fairfield DCP On the eastern boundary the side setback is required to be 1.5m but the proposed development is located 1.3m from the side boundary. 2.5 Landscaping - cl 5.7.1 of the Fairfield DCP The landscape bed running along the western side of the driveway does not meet the requirements set out in cl 5.7.1 on two grounds. First, the landscaping strip is only 400mm wide rather than being 600mm wide as required; secondly, no plan has been provided indicating the extent of hard and soft zones. Issue 5 15 5.1 Loss of trees The proposed development would result in the loss of eight mature trees which would reduce the canopy of the locality. 5.2 Adverse impacts on adjoining premises The proposed development is not in the public interest having regard to substantive issues raised by the resident objectors in relation to the unacceptable adverse impacts the proposed development is likely to cause on the amenity of the adjoining premises and in the locality.

Relevant environmental planning instruments 16 The subject land is in an area zoned Residential 2(a) - Residential A under the Fairfield LEP.

General objectives of the Residential 2(a) zone - Residential A 17 The objectives are: (a) to set aside land primarily for the purposes of housing and associated facilities (b) to provide for the orderly development of detached housing, essentially domestic in scale and character (c) to achieve attractive high quality residential development (d) to allow people to carry out a reasonable range of business activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours; and (e) to allow a range on non-residential uses that: (i) are capable of integration with the immediate locality (ii) serve the demands of the surrounding population, and (iii) do not place demands on services beyond the level reasonably required for residential use Subdivision in the Residential A zone 18 Clause 22A of the Fairfield LEP states: (1) The Council may consent to the subdivision of land within Zone 2 (a) only if each allotment to be created will have an area of not less than 450 square metres. … (2)The area of an access handle serving an internal allotment is not to be taken into account for the purpose of subclause (1).

19 Chapter 5 of the Fairfield DCP applies to single dwelling housing including any on the subject site. The general objectives of the chapter are identified as: · To ensure that new residential development is of a high standard and results in an improvement in the quality of environment · To encourage residential development which responds to the wide range of housing needs of the population · To protect adjacent land and the wider environment from the impact of new development, and · To establish design constraints which set reasonable standards of amenity for a development and its surroundings.

5.1 Lot Requirements The size of a lot and the density of built structures affect the amenity of a lot, the adjoining sites and the residential area as a whole. To ensure a high level of amenity, the lot size and the floor space ratio are regulated for single dwelling houses.

5.1.1 Lot size Objectives (a) Ensure privacy is maximised for neighbours of the development and those who occupy the single dwelling. (b) Provide space for private recreation purposes. (c) Provide space for landscaping Control (a) The minimum lot size required for a detached single dwelling house is 450m2 (access handles are excluded form this site area). Residents' objections 20 Objections to the proposed development were made by surrounding residents. Sonja Zink of 4 Cahill Street Smithfield, who lives on the property adjacent to the rear boundary of the subject site, raised concerns relating to water run-off into her yard from the proposed development, the proposed easement and pipe built for drainage through her land and whether she would be required to remove trees for this purpose, increased noise from cars driving on the property and the impact of headlights, privacy concerns, proximity of the proposed development to her land, overshadowing of her backyard, the removal of the liquid amber tree from the subject site, and fears that the value of the neighbourhood and her own property would be reduced by the new development.

21 Mrs Watt, of 87A Neville Street Smithfield, located on the eastern boundary of the subject site, expressed concerns relating to safety involving the demolition of the current existing fibro house to allow for the new development. In particular, Mrs Watt raised concerns about asbestos dust from any demolition. Mrs Watt acknowledged that part of her view from her kitchen window would be blocked by the proposed development but on the whole was satisfied that most of her view would look onto the vacant space between the two proposed dwellings.

22 Karlo Rozanc, of 89 Neville Street Smithfield, located to the north of the subject site, expressed concerns about more pollution from increased motor vehicle use of the driveway, dust interfering with the clothesline in his backyard, an increase in the number of rubbish bins and the associated odour, especially in summer, whether there would be any change in ground level leading to increased run off of water into his yard, and increased problems with the mix up of mail currently experienced by residents.

23 June and Tony Giorgi, of 89B Neville Street Smithfield, located to the south west of the subject property, own half the right of way which benefits their land and the subject property. They expressed concern about the increased use of the access road in terms of safety due to cars speeding along it. They have been paying rates for half of the driveway up until the present and the proposal allows for the other half of the driveway to be divided between two other residences when to date there has been only one. A hard surface driveway is preferable to gravel if the proposed development goes ahead.

24 Bogdan Koscica, of 91 Neville Street, located to the northwest of the subject site, also expressed concern about increased traffic along the driveway, and problems with people leaving their rubbish bins on his front yard for collection making him liable for Council fines if they remain there or the rubbish is spilled. Should the SEPP 1 objection be upheld? 25 The key issue in this case is whether the SEPP 1 objection in relation to cl 22A of the Fairfield LEP should be upheld, so that the smaller allotment size of less than 450m2 for one lot could be approved. Clause 3 of SEPP 1 states that the objectives of the policy are to provide: flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act. Clause 6 of SEPP 1 further provides: Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection.

26 In Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46, Lloyd J set down the following tests at [26]: In applying the above-mentioned judgment, it seems to me that SEPP 1 requires answers to a number of questions (not necessarily in the following order). First , is the planning control in question a development standard? Second , what is the underlying object or purpose of the standard? Third , is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act? Fourth , is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth , is the objection is well founded? In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.

27 The parties agree that cl 22A of the Fairfield LEP is a development standard.

28 The SEPP 1 objection relied on by the Applicant was not filed until the hearing as a new SEPP 1 objection was then tendered to replace the previous SEPP 1 the Applicant had filed and which the Court appointed expert addressed in his report. Applicant's submissions 29 Applying the tests in Winten, the Applicant submitted that its SEPP 1 objection should be upheld. The Applicant argued that there was no specific objective contained in cl 22A of the Fairfield LEP. Consequently the only relevant objectives were those identified in Ch 5 cl 5.1.1 of the DCP, which deals with a minimum lot size requirement for single dwelling houses of 450m2. The three specific objectives identified in Ch 5.1.1 are: (a) ensure privacy is maximised for neighbours of the development and those who occupy the single dwelling (b) provide space for private recreation purposes (c) provide space for landscaping 30 Accordingly the SEPP 1 objection addresses these three objectives as the only relevant objectives for the purposes of the second test in Winten and concludes these were met by the proposed development because privacy concerns were addressed by minimising the number of window openings on side boundaries and substantial boundary offsets where necessary. The Applicant argued that the plans indicated that the closest part of a building to the south of the subject site was a ground floor rumpus room without any windows. There were no privacy issues because nobody could see in or out of that section of the house closest to Mrs Zinic at the south of the property. On the second floor, neither bedroom window faces south, and the only window that does is a small frosted glass window. Therefore, the first objective relating to lot requirements is satisfied.

31 There is provision for private open space for each dwelling in excess of the minimum DCP requirement of 80m2 which are useable spaces with access to natural sunlight. The Applicant also argued that private open space was provided in excess of the minimum standard so that there were areas of private open space. In relation to landscaping, Ch 5 cl 5.7.1 (a), which sets a standard of 30 per cent minimum landscaping on lots, was also complied with. Therefore, the Applicant argued that its proposal complies with all the objectives of lot requirements for single dwelling houses, notwithstanding the fact that the minimum lot size itself is not complied with. 32 The Applicant argued the underlying objective did not include the opening words of Ch 5 of the DCP or of cl 5.1 (see par 17 above). Those words are no more than an explanation of what the Council was trying to achieve in relation to single dwelling houses, as opposed to the stated objectives in Ch 5.1.1(a), (b) and (c).

33 The Applicant addressed the third question raised by Lloyd J in Winten, namely, whether compliance with the development standard would be consistent with the policy. The Applicant submitted that to provide additional housing in an area where infrastructure is already in place is orderly development of land in accordance with s 5 of the EP&A Act and therefore compliance with the standard would hinder the achievement of that aim. It argued that non-compliance of the proposal with the minimum lot size is minimal and of little impact, compared with its potential to provide appropriate redevelopment for two single dwelling houses.

34 In relation to the fourth Winten test, whether compliance with the development standard is unreasonable or unnecessary in the circumstances, the Applicant submitted that what must be examined is the variation sought from the development standard, and not whether the development standard itself is unreasonable. This test was clearly satisfied as was the fifth test.

35 In answer to the Council's argument that the SEPP 1 objection must fail because it did not satisfy cl 6 (see below, par 36), the Applicant argued that if the other objectives raised by the Council (if relevant) were not in the written objection that did not mean the application was invalid. The Applicant submitted that although the SEPP 1 objection must be in writing, each and every objective does not need to be addressed. Council's submissions on SEPP 1 36 The Council argued that the SEPP 1 objection relied on does not comply with cl 6 of the SEPP, since the relevant objectives referred to in the second test in Winten were not all contained in writing in the SEPP 1 objection relied on.

37 The Council argued the objectives for Ch 5 of the DCP on page 1 of the instrument and the heading of cl 5.1.1 were also relevant. The Applicant had failed to address those objectives in its SEPP 1 objection. The Applicant has an onus to show satisfactory compliance with the objectives on the introductory page of Ch 5 and in the heading to cl 5.1 and has not done so. 38 Even if the SEPP 1 objection was found to be valid despite not referring to all the relevant underlying objectives and analysing these as is arguably required by Winten the Council relied on the conclusions of the Court appointed expert, Mr Jones, to argue that compliance with the development standard in cl 22A should be upheld and the SEPP 1 objection refused.

Planning evidence of Court appointed expert on SEPP 1 objection 39 Mr Jones was the Court appointed expert on town planning issues. His report dated October 2006 concluded the development should not be approved, having regard to the provisions of s 79C of the EP&A Act. He stated that: The proposed development is non-compliant with a number of provisions of the LEP and DCP. The critical issues are those of inadequate access, inadequate landscaping, and inappropriate eastern boundary setbacks. These matters result in unacceptable adverse visual impacts from adjoining properties, shadowing impacts on adjoining properties and compromised amenity for future occupants of the development.

The proposed development is out of character with the immediate locality particularly in respect of the subdivision and development pattern.

In my opinion the SEPP No 1 Objection is not well founded and does not establish that the strict compliance with the development standard is unreasonable or unnecessary or that strict compliance with the development standard tends to hinder the attainment of the objectives of the Act.

This report responded to the original SEPP 1 objection filed by the Applicant. (As already noted the SEPP 1 objection the Applicant finally relied on was not tendered until the day of the hearing). 40 The original SEPP 1 objection filed by the Applicant stated that there were no specific objectives contained within cl 22A of the Fairfield LEP. The original objection identified the objectives of the development standard as being to "provide allotments that are of sufficient size to accommodate the residence and ancillary amenities including privacy, open space and landscaping" and acknowledged the importance of compatibility of the development with the "subdivision pattern and character of the locality".

41 Mr Jones examined the site having regard to the locality's existing character and subdivision pattern, and was of the view that the proposed development did not satisfy these objectives. He noted that the subdivision pattern in the street block is predominantly characterised by rectangular shaped allotments with varying frontages and depths. There are a number of battleaxe allotments in the street other than the subject property. All existing allotments have areas greater than proposed under the development application in these proceedings. Existing battleaxe allotments typically have access handles that service only one or two allotments. There is only one other example in the vicinity, at 208-212A Brenan Street, where the access handle serves three battleaxe allotments. The lot sizes which share this access handle are all larger than the proposed development.

42 Based on this assessment of the existing character of the locality, Mr Jones disagreed with the original SEPP 1 objection which stated that the siting and design of each proposed dwelling is "sympathetic to surrounding development" and that "the obvious and desired subdivision pattern both now and in the future" for the location is battleaxe-style subdivision. Instead, he concluded that the proposed variation to the development standard is inappropriate. The subdivision creating two allotments from the current single battleaxe allotment is inconsistent with the predominant subdivision pattern because of: (i) the relatively small allotment areas, (ii) the splayed boundary between the allotments that is not present elsewhere in the locality, and (iii) the tandem nature of the proposed allotments.

He argued that the creation of two lots in the proposed subdivision does not result in development of a high standard, does not improve the quality of the environment, does not reasonably protect adjacent land from the impact of the new development and does not achieve attractive, high quality residential development, as required by the objectives of the Fairfield LEP.

43 Mr Jones further stated that the original SEPP 1 objection relies on the reasoning that the variation to the development standard is justified as it is minor in nature. However, he was of the view that pursuant to the principles in Hooker Corporation and Winten this approach is not adequate to found an objection. The relevant test is not whether the variation from the standard is acceptable, but whether strict compliance with the standard is unreasonable or unnecessary.

Finding on SEPP 1 objection 44 I consider the Applicant's SEPP 1 objection which states that the underlying objectives of the development standard, cl 22A of the Fairfield LEP, are only those set out in cl 5.1.1 of the DCP is too narrow an interpretation of the relevant underlying purposes to be considered under the second test in Winten. Clause 22A of the Fairfield LEP relates to the subdivision of land zoned Residential 2(a) and the general objectives of that zone are set out in par 17 above. The requirement for a particular lot size in the LEP is clearly directed to the maintenance of a subdivision pattern and the residential character of the locality as the Court appointed expert identified in his report, responding to the first SEPP 1 objection filed by the Applicant but not then relied on. Cases such as Hooker Corporation and Winten make clear that underlying objectives which do not appear explicitly in an LEP should be considered in a SEPP 1 objection if necessary. These broader objectives and other objectives relating to protection of amenity are identified in part in the general objectives to Ch 5 of the Fairfield DCP and the opening words of cl 5.1.1 although that chapter is particularly related to single dwelling house development rather than subdivision. While it may be appropriate to refer to the DCP controls and their specified purposes, these are not development standards as referred to in cl 2 of SEPP 1 where development standards are defined by s 4 of the EP&A Act as follows: "development standards" means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including … 45 The development standard under consideration here is cl 22A of the Fairfield LEP and has to also be answered in the context of the LEP. The objectives specified in cl 5.1.1 of the DCP alone are insufficient for the analysis required under Winten in this case. I consider that the Applicant's SEPP 1 objection should have addressed objectives beyond these, such as the objectives identified in the introduction to Ch 5 of the DCP in relation to single dwelling houses and objectives identified in the Court appointed expert's report in relation to the residential character of the neighbourhood and the subdivision pattern, but it fails to do so. Arguably therefore the Applicant's SEPP 1 objection must fail as it does not address all the matters necessary to satisfy the tests in Winten. 46 This finding applies regardless of whether I agree with the Council's submission based on cl 6 of SEPP 1 that the Applicant's SEPP 1 objection failed to identify in writing all the relevant grounds of objection as that clause required, and was therefore invalid. I asked the parties whether there is any case law on the scope of the requirement in cl 6 of SEPP 1 that an objection be fully set out in writing but none was provided. It is clearly desirable that all matters relevant to a SEPP 1 objection are in the written application. My preliminary view is that if the Applicant had indicated at the hearing that it wished to rely on a SEPP 1 objection which related to matters beyond those raised in the written objection and all those matters were otherwise addressed in writing, say in an expert's report and other evidence before the Court, then I consider it may be possible to satisfy cl 6. In any event the Applicant chose to confine its SEPP 1 objection to a limited number of objectives set out in the DCP at cl 5.1.1 as reflected in the SEPP 1 objection filed at the hearing. By virtue of the limited scope of the SEPP 1 objection relied on, cl 6 was not complied with in this case. 47 The general objectives I consider relevant to a consideration of cl 22A of the Fairfield LEP, and which are addressed in the Court appointed expert's report were addressed by the Council's submissions in that it adopted the Court appointed expert's report. For completeness, if I had been considering the merits of a SEPP 1 objection which did consider all the relevant underlying objectives of cl 22A of the Fairfield LEP under the Winten tests I would have adopted the opinion of the Court appointed expert Mr Jones that such a SEPP 1 objection should not be upheld. In my view when the broader underlying objectives of Fairfield LEP in requiring a minimum subdivision size for a particular residential zone are considered, compliance with the development standard in cl 22A does not hinder the attainment of the EP&A Act objects and nor is compliance with the development standard unreasonable or unnecessary in the circumstances of this case. 48 It follows that the development application must be refused. It is unnecessary for me to consider the other merit issues raised.

Orders 49 The Court makes the following orders:

1. The Applicant's Class 1 appeal is dismissed.

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