Modern Building Development Pty Ltd v Cumberland Council

Land and Environment Court (NSW)|2024-07-22

JUDGMENT

COMMISSIONER: These proceedings are about the suitability of a child care centre in an employment zone where high density residential is also permitted. One of the key issues is the variation of the site consolidation plan and the impacts to the remaining sites.
This is a Class 1 appeal by Modern Building Development Pty Ltd (Modern Building) of Cumberland Council's (Council) actual refusal of DA No. 2023/0118 for the removal of trees, demolition of existing structures and construction of a centre-based child care facility at 12 Florence Street, South Wentworthville.
For the reasons set out, the proposed development has not demonstrated that it has made genuine efforts to consolidate with the surrounding properties to permit a variation to the site consolidation plan for the Finlayson Transitway Precinct. The environmental impacts to the adjoining properties warrants refusal of the amended DA.

Amended Application

During the hearing the Applicant sought to amend their DA. Council partly opposed the amendments in relation to the further valuation report and engineering statement regarding the easement at 14 Florence Street.
The Court granted leave to amend the DA pursuant to s 39 of the Land and Environment Court Act 1979, however did not allow evidence in relation to the engineering evidence regarding the easement on the basis that the evidence was not directly relevant to the stated issues in dispute. The other amendment opposed by Council was the introduction of a further valuation report. The further valuation report was allowed on the basis that the town planners had dealt with the issue in the Town Planning joint expert report (Planning JER) and could deal with the report in the same way. The other amendments were unopposed. The Court granted leave to amend the DA (Ex C). The amendments are summarised as follows:

Site description and locality

The following is summarised from Council's Statement of Facts and Contentions (SOFAC). The subject site is known as 12 Florence Street, South Wentworthville and legally described as Lot 9 in DP 8773 (site). The site is generally rectangular in shape, with an angled frontage of 17.68m, depths of 53.695m (north) and 58.76m (south) and total site area of 855.1m2. The site is generally flat, with a cross fall of 1m sloping down to the southern boundary.
The site is zoned E3 Productivity Support under the Cumberland Local Environmental Plan 2021 (CLEP) and is also subject to an additional permitted use clause that allows shop top housing.
The locality is mixed in character. Development facing the Great Western Highway includes a Dan Murphy's, fast food outlet and further east, a small shopping centre. Whilst the site is located over 800m from a train station, it is within a short walking distance to the T80 bus transitway (which operates through dedicated bus lanes between Liverpool and Parramatta) and was observed at the site viewing.
Development opposite the site is high density residential. The site itself and three adjoining sites are undeveloped, with single storey detached dwellings. The Court was taken on a street walk of Florence Street, the Greater Western Highway and Rawson Road.

Issues

The following contentions were raised by Council in its SOFAC to warrant refusal of the application:

Contention 1 - Development does not conform with E3 Productivity Support zone objectives.
Contention 2 - Site consolidation and impacts on neighbouring sites.
Contention 3 - Precinct vehicular and pedestrian access.
Contention 4 - Front setback.
Contention 5 - Side setbacks.
Contention 6 and 7 - Solar access / overshadowing.
Contention 8 - Streetscape.
Contention 9 - Parking.
Contention 10 - Vehicle access and manoeuvring.
Contention 11 - Stormwater infrastructure and easement.

On the basis of the joint expert reporting and amendments / further information provided during the hearing, it was agreed by the parties that parts of the engineering contention were resolved and contention 11 was not pressed.

Public Submissions

The DA was notified by Council from 18 May to 1 June 2023 where two submissions were received. The issues raised by the submissions are summarised below (Ex 5):

Redevelopment should occur consistent with the rezoning and DCP between 8, 10, 12 and 14 Florence Street. All four sites are willing to redevelop together.
8 Florence Street has not been approached to redevelop or purchase their site.
The offers relied on are from previous DAs.
The offers made were not genuine and contact details to discuss the letter of offer were refused on request.
Concept plans have not been provided to show redevelopment of the remaining sites.
Impacts from the required laneway on redevelopment and cost of lane.

Expert Evidence

Expert evidence for the planning issues was submitted in a joint expert report (Ex 2) (Planning JER) and Supplementary Town Planning Joint Expert Report (Ex 11) (Supplementary JER) by Mr Jonathon Wood for the Applicant and Mr Harley Pearman for Council.
Expert evidence for the stormwater issues was submitted in a joint expert report (Ex 3) (Stormwater JER) by Mr Moussa Zaioor for the Applicant and Mr Sazzard Sarker for Council.
Expert evidence for the parking and access issues was submitted in a joint expert report (Ex 4) (Parking JER) by Mr Dean Brodie for the Applicant and Mr Sazzard Sarker for Council.
Oral evidence was provided during the hearing by the planning and parking/traffic experts.

The Planning Framework

In accordance with the SOFAC, the following planning legislation, environmental planning instruments and development control plans apply or are contented to be considered for the proposed development:

Environmental Planning and Assessment Act 1979 (EPA Act)
Environmental Planning and Assessment Regulation 2021 (EPA Regulation)
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI)
Child Care Planning Guidelines
Education and Care Services National Regulations
CLEP 2021
Cumberland Development Control Plan 2021 (CDCP)

Site Consolidation

Council presses that the site consolidation controls of the CDCP Part F4 - Finlayson Transitway Precinct have not been met. The proposed development has not demonstrated that amalgamation cannot be achieved, and the proposed development would isolate and restrict future development on adjoining sites. Both contentions 2 and 3 are relevant to the site consolidation issue which I'll consider together. The relevant controls are set out below: 4.2 Site Consolidation Objectives O1. Ensure all sites achieve the required minimum width to adequately provide for basement car parking. O2. Ensure all sites achieve the required minimum width to allow for a site configuration that permits a consistent landscaped open space to the rear of sites. O3. Ensure any site amalgamation pattern does not restrict the development opportunity of any adjoining site or the ability of adjoining sites to provide basement car parking or rear open space. O4. Encourage a more continuous building form. Controls C1. Amalgamation of lots in accordance with Figure 13 is required for redevelopment. C2. The minimum lot frontage for all development in Finlayson shall be 30m. C3. In instances where amalgamation cannot be achieved, the following information must be submitted with any development application: • two written valuations indicating the value of the remaining sites that were to be developed in conjunction with the applicants properties. These are to be undertaken by two independent valuers registered with the Australian Valuers Institute, and; • evidence that a reasonable offer has been made to the owners(s) of the affected sites to purchase and valuation reports. C4. Alternative consolidation patterns may be considered by Council if it can be demonstrated that development controls can be satisfied on the land and adjoining properties. C5. Where amalgamation (as required) is not achieved, the applicants must show that the remaining sites, which are not included in the consolidation, will still be able to achieve the development outcome prescribed in this DCP, including achieving the required vehicular access, basement parking and built form. C6. Sites must not be left such that they are physically unable to develop in accordance with the prescribed built form outcomes outlined in this DCP. C7. Properties not identified in Figure 13 shall redevelop in accordance with the development controls detailed in Part C of this DCP. Note: Potential value can include, (but is not limited to) the land locked site developed jointly with adjoining properties, or on its own, under Cumberland LEP 2021 and this plan. A reasonable offer shall be a fair market value, and include for all expenses that would be incurred by the owner in the sale of the land locked site. Council will accept as documentary evidence a copy of a written offer delivered by registered mail to the affected owner(s) and dated no more than 3 months prior to the date of lodgment of the development application. Figure 13 is extracted below, with the subject site shown in red. Part 4.3 Private accessway, land dedication and vehicular entries … Objectives O1. Require buildings fronting primary roads to have vehicular access from the rear or side of the property. O2. Ensure sites utilise existing access ways from the rear of the property for vehicular access and parking. O3. Create secondary vehicular access where necessary to mitigate amenity and access constraints. O4. Create clear and direct pedestrian connections. O5. Allow improved circulation space for pedestrians and future residents within the precinct. Controls C1. A 12m connecting laneway between Rawson Road and Florence Street is required in accordance with Figure 14. …
Modern Building submits that the controls in Part F4 do not apply. Firstly, the Introduction section of Part F4 of the CDCP states that 'This Part of the DCP applies to all development within the Transitway Precincts of Mays Hill, Finlayson and Sherwood as shown in Figure 1'. Figure 1 only shows a map of the Mays Hill Transitway Precinct. Despite being recently amended in June 2024 (Ex B), the site is not located in Figure 1 and Finlayson Station and the commercial core are not identified. Secondly, in cross examination, Mr Pearman accepted that the subject site is not shown in Figure 1. Section 3.26 (1) of SEPP (TI) does not allow more onerous standards to be applied for the non-discretionary development standards of s 3.26(2)(c), which states that a development may be located on a site of any size, frontage or depth. Further, for the same reasons, a provision of a DCP has no effect where it is inconsistent or incompatible with an EPI (s 3.43(5) of EPA Act).
Council submits that Part F4 does apply. In relation to Part F4 of the CDCP, Figure 1 in the introduction section of Part F4 of the CDCP is an error. Part F4 of the CDCP is clear from the title page, opening paragraph and sections of controls that there are three separate precincts of Mays Hill Transitway, Finlayson Transitway and Sherwood Transitway. Therefore, F4 and the controls apply. Mr Wood in the Statement of Environmental Effects and in cross examination agreed that the controls were relevant.
In relation to SEPP TI, there is no contention about the site dimensions of the subject site. The contention is about the impacts on adjoining sites, which does not conflict with s 3.26(c) of SEPP TI.
Both parties provided comprehensive written submissions on the issues and jurisdictional matters, which the Court is grateful for.

Evidence

Attached to the Planning JER is evidence of undated and unsigned letters of offer (made without prejudice) to 8, 10 and 14 Florence Street from Modern Building Design. Based on the Planning JER, date of the valuation reports and response from 10 Florence Street, it is assumed that these were sent in mid-February 2024 by both registered post and email. The valuation reports for each property were prepared by Aussie Valuers and JP Valuation in January 2024 and attached to the letters of offer.
The planning experts agree that to the extent of their expertise, the valuation reports had been undertaken on the basis of sales within R2 and R3 zonings for dwelling houses, which is a prohibited use in the E3 Productivity Support zone. The planning experts identified several differences in the valuers stated comparable sales including different zones, different FSRs (mostly up to 0.7:1 where 1.8:1 applies here), different heights (9m where 20m applies here), incorrect permissibility assumptions and an incorrect site area for 14 Florence Street quoted in the Aussie Valuers report. It was agreed that there were no 'like for like' comparable sales in the reports. The experts agree that the valuation reports did not include the development potential of the sites, as required.
The planning experts agreed in the Planning JER that reasonable offers had not been made as the valuation reports were flawed.
No response to the offers to 8 and 14 Florence Street was received. On 18 February 2024, the offer of $1.25 million was refused by the owner of 10 Florence Street. Mr Pearman says that the refusal is not relevant as the offer was flawed.
An amended Valuation Report prepared by JP Valuations dated 17 June 2024 was undertaken for 10 Florence Street, which the experts agreed had not been provided to the owner of the site with an offer to purchase (amended valuation report). The amended valuation report considered three hypothetical scenarios ranging in increased valuation figures between $1.3 million to $1.5 million. The planning experts considered, to the best of their expertise, that the amended valuation report considered more reasonable comparative sales. Both experts fairly expressed their limitations in evaluating the methodology undertaken to arrive at the valuations.
No further offer was made to 10 Florence Street on the basis of the amended valuation report.
The experts agree that 8 and 10 Florence Street are constrained by the 12m laneway sought by the CDCP and 14 Florence Street by an existing easement.
The experts agreed that the concept plans for the adjoining sites showed the following: Address Concept development type Frontage Height (20m) FSR (1.8:1) Concept Parking 8 and 10 Florence Street Five storey shop top development with ground floor commercial and 10 apartments above. 35.36m Close to maximum 1.28:1 (excluding land for laneway) or 0.76:1 (excluding land for laneway) Agreed that 22 car spaces are required and 19 are shown. Laneway connecting from Barfil Close to Florence Street shown. HP considers only 16 are useable. 14 Florence Street Four storey shop top development with ground floor commercial and six apartments above. 17.68m Close to maximum 0.84:1 Agreed that 11 car spaces are required and 9 are shown. It was agreed that only 8 were useable car spaces.

Mr Wood's evidence is that Modern Building has been unable to amalgamate with the adjoining property owners, accepting that there are some questions on the valuation report's methodology.
Mr Wood's evidence is that a valuation was only undertaken for 10 Florence Street as amalgamation cannot occur with 8 Florence Street or Lot 17 if 10 Florence cannot be obtained.
Mr Wood says that the key question is whether adjoining sites retain development potential and if the current proposal is acceptable. The concept plans demonstrate basement access, car parking and a multi storey development as achievable. Redevelopment through a series of buildings across the sites would not be disjointed and individual buildings can exist in harmony. They are therefore not isolated and have development potential absent amalgamation. Mr Wood raises concerns about how the proposed laneway can be achieved, as it is absent from a land acquisition map and 7.11 contribution plan.
Mr Wood's evidence is that 14 Florence Street is cut by a 2.5m easement that would be an impediment to amalgamation. On the basis that 10 Florence Street has declined to accept the offer to acquire the site and the easement impediment of 14 Florence Street, amended valuations of the other sites have not been undertaken as the amalgamation pattern can't be acheived.
Additionally, Mr Wood's evidence is that further offers were not made as the land parcels can develop absent the subject site.
Mr Pearman's evidence is that the CDCP laneway was based on the Department of Infrastructure, Planning and Natural Resources (Department) 2003 land use study for the Liverpool-Parramatta Transitway (Transitway). The study recommended commercial and multi-unit housing in this precinct. In 2008, the former Holroyd City Council undertook an Urban Design and Land Use Study for the Transitway, which included controls and the laneway that were adopted in 2013 for the Finlayson Precinct.
Mr Pearman's evidence is that the desired laneway and existing easement are physical constraints that impact on the developable land of the remaining sites. The concept plan for 8-10 Florence shows the laneway dissecting half of the amalgamated site and shows an isolated southern land parcel that would be difficult to redevelop (Lot 17, located behind 8 Florence Street). The concepts show that the development potential of all sites is undermined in terms of floor space ratio.
Mr Pearman's evidence is that the concept development building typologies are vastly different to existing residential development on the opposite side of Florence Street.
The proposed development would thwart the sought after connections in the precinct between Barfil Crescent and Rawson Road.

Submissions

Modern Building submits that section 4.2 of the CDCP does not apply as stated at [20]. If it does, the stated lot consolidation forming part of the 'strategic planning vision for the locality' is unknown, as the amalgamation controls apply to any or all forms of development. Modern Building submits that the precinct objectives provide that the redevelopment of adjoining sites is not to be restricted, inferring that amalgamation is not necessary.
Modern Building submits that the agreement of the planning experts is that the development is both permissible and compatible. The consolidation of lots and the proposed development cannot both occur. The desired future character statement for the Finlayson Transit Precinct refers to site consolidation allowing communal open space for residents, which would not apply to other forms of development.
Modern Building submits that little weight should be given to the CDCP in applying the amalgamation control: see Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [87] (Stockland).
Council submits that the controls apply as stated at [21] - [22]. The CDCP requires consolidation of sites Lot 17, 8 Florence Street, 10 Florence Street, 12 Florence Street and 14 Florence Street. As part of that consolidation, a laneway is to be provided to connect Barfil Crescent to Florence Street.
Council submits that section 4.2 of the CDCP outlines steps that need to be followed in order for Council to consider a variation to the consolidation plan. These steps have not been followed. Valuation reports have not been provided for Lot 17. The two valuation reports for 8, 10 and 14 Florence Street do not compare apples with apples, are based on different zones, heights and FSRs, are based on dwellings houses that are prohibited in the zone and do not consider redevelopment as an amalgamated site. No reasonable offers to any sites have been made as the previous valuation reports are flawed.
The alternate consolidation plans (concept plans) show that the sites are unable to achieve the development outcomes of the DCP and underdeveloped CLEP height and FSR.

The applicable controls - does Part F4 of the CDCP apply?

SEPP TI excludes the operation of certain LEP and DCP provisions where they are more onerous or are dealt with pursuant to s 3.26, 3.27 of the SEPP TI and in the Child Care Planning Guidelines.
However, there is no reference to site consolidation in SEPP TI or the Child Care Planning Guidelines. In my view, the site consolidation controls are about more than the subject site's own size, which is the basis of s 3.26(2)(c). The site consolidation control does not necessarily require a site to be a certain size, but seeks to ensure redevelopment can occur in a preferred manner for groups of sites and allows variations to that consolidation pattern. There are potential environmental and redevelopment impacts to adjoining sites based on variations to the sought after consolidation plan. On this basis, I accept Mr McFadzean's submissions that the controls of section 4.2 of the CDCP apply and are not in conflict with s 3.26(2)(c) of SEPP TI and s 3.43(5) of the EPA Act (except for section 4.2 C2 Frontage, which I accept does not apply to the subject site).
It appears to me that Part F4 of the CDCP has an error, in that Figure 1 only shows Mays Hill instead of the three transitway precincts. Ordinarily, I would accept that where a DCP maps where it applies to, that that description is the primary consideration for its application. In this instance, this would mean disregarding the heading of Part F4 (Part F4-2 Mays Hill, Finlayson and Sherwood Transitway Precinct) and disregarding two thirds or 12 pages worth of planning controls that have specific and separate subheadings for the 'Finlayson Transitway Precinct' and 'Sherwood Transitway Precinct'. I therefore accept that Figure 1 that only shows May Hills is the error and not the remainder of Part F4. I accept that Part F4 of CDCP applies to the proposed development.
The primary position of section 4.2 of CDCP is for sites to consolidate to ensure development opportunity of sites is not restricted (4.2, Objective O3 and Control C1). The lot consolidation identified in Figure 13 comprises 8, 10, 12, 14 Florence Street and Lot 17 (to the rear of 8 Florence Street). I note that the provision applies to all development and does not make any reference to residential development. The agreed position of the expert planners is that Figure 13 is not achieved, which I accept.
I accept Mr McFadzean's submissions that controls C3 to C6 set a formula to be followed that permits variations to the Figure 13 amalgamation plan.

The offers and valuations

C3 requires evidence that amalgamation has been attempted. Evidence of consolidation is required by demonstrating that a reasonable offer has been made to purchase adjoining sites, with the offer to be accompanied by two independent valuation reports. The notes of the CDCP, which are not controls, provide some guidance about the reasonable offer being of fair market value and including expenses incurred by the owner in the sale of the land.
Whilst two valuation reports were prepared and accompanied the offers in February 2024, I accept the agreed planning evidence that the valuation reports did not consider the properties as development sites. Further, I accept that the sites relied on were not comparable in terms of zoning, permissibility, height and FSR. I therefore find that the offers made to the adjoining properties do not constitute a 'reasonable offer' on the basis that they did not consider redevelopment potential of the sites and the offer was made on flawed assumptions.
The rationale of providing an offer of 'fair market value' (based on two independent valuation reports from registered valuers who have considered the redevelopment potential of the sites) is to engage in a genuine attempt to consolidate. The flawed valuation reports on which offers were made has not genuinely engaged in the alternate amalgamation process provided by C3 - C6 of the CDCP. The same is true of the amended valuation report provided during the hearing. The methodology was more consistent with an offer of market value, but on its own, the amended valuation report is of little assistance. The intended recipient (the adjoining landowner) did not receive the amended valuation report with a letter of offer and lacks the benefit of the evidence that the offer made has been based on market value. In this instance, the values of the site were generally higher in the amended valuation report than the offer. The process of seeking to genuinely consolidate lots has not been followed.
Further, the resident from 10 Florence Street sets out in their objection that '..all three owners i.e, 8, 10 and 14 Florence Street, South Wentworthville… are 'stuck' and unable to sell as one lot for nearly 13 years… All three owners…(are) ready to sell and negotiate with Real Estate (sic)…as one amalgamated development site'. The objection letter from 8 Florence Street infers a willingness to redevelop as a consolidated site, though does not outright state this.
It seems evident that at least 10 Florence Street was willing to amalgamate and potentially 8 Florence Street. The same submission from 10 Florence Street indicates that the offer to buy was rejected as the offer was too low. There is no detail on what, if any, valuations 10 Florence Street or any other owners obtained in order to engage with the process. In my view, it is reasonable to expect adjoining owners to engage in the process and not simply reject offers for being too low without their own evidence.
Notwithstanding, 10 Florence Street's objection details difficulties in having any discussions about the offer/s made. A previous offer before 2024 was made without a valuation report. The phone number supplied (and rung by 10 Florence) was to the architect. The objection stated that on ringing the phone number, that the requested contact details of the person who made the offer to purchase the property were refused.
The contact number leading to the architect seems unorthodox and the inability to provide direct contact details of the person or company making the offer to purchase suggests an unwillingness from 12 Florence Street to reasonably engage in the process. There is no evidence to contradict the account stated in 10 Florence Street's written objection.
For the reasons set out above, I accept the evidence of the planners and lay evidence of 10 Florence Street that the offers to purchase the adjoining properties were inadequate. The offers were made on the basis of inadequate valuation reports with fundamental deficiencies, such as consideration of its value as a dwelling house (prohibited in the zone but acknowledging there may be existing use rights available) and no consideration of redevelopment potential. These valuation reports formed the basis for the offers made to 8, 10 and 14 Florence Street. Control C3 of 4.2 site consolidation is not met. To the extent that the objectives of 4.2 relate to this control, I also find that the relevant objectives O1 and O3 are not achieved, for the same reasons as detailed from [60] to [73].

Variation to amalgamation pattern and impacts on adjoining sites

C4, C5 and C6 provides that the applicant is to show that the remaining sites are able to achieve the development outcome sought by the DCP, with a focus on built form, vehicular access and basement parking. Sites must not be left so that they are physically unable to redevelop. This is consistent with objectives O1, O2 and O3 of 4.2.
C2 seeks a minimum frontage of 30m. The experts agree that an amalgamated 8-10 Florence Street would achieve the minimum frontage, whilst 14 Florence Street would not.
I accept Mr Wood's evidence that the concept plans are sufficiently detailed for their purpose and to address C4-C6.
I accept and prefer Mr Pearman's evidence that the concept plans do not demonstrate that the remaining sites can achieve the development outcomes sought in the CDCP.
The CDCP specifies that vehicular access, basement parking and built form are three key considerations. Both planning experts agree that Part F4 of the CDCP seeks to provide a continuous built form for this area. Both planning experts agree that the concept plans for both sites are not able to accommodate the car parking requirements shown in the concept schematics. This has an implication on the realisation of the built form shown on the concept diagrams, showing that either a variation to the minimum car parking would be required or that the concept built form cannot be achieved.
In relation to the concept plans for 14 Florence Street, the frontage of 17.68m would be inconsistent with C2, which requires a 30m frontage. I do not accept that the easement is an impediment to consolidation with the subject site, as many sites contain easements or require easements when they redevelop, and design their development around that environmental constraint.
Consistent with the evidence of the planners, I accept that a small part of the concept plan basement encroaches on the easement, which demonstrates conceptual issues with either the available frontage, vehicular entry or basement parking configuration (or all of three). In addition, as stated above, the concept plans have not shown that it can accommodate the required car parking. This would potentially necessitate a reduction to the built form shown in the concept plans. On this basis, the built form shown on the concept plans is either not achievable or necessitates other variations to key development outcomes sought by the CDCP. Not a DCP control but relevant to the likely impacts of the development, the concept plan shows that an FSR of only 0.84:1 is achievable on a site with a maximum of 1.8:1.
I accept Mr Pearman's evidence and find that the concept plans for 14 Florence demonstrates that the concept built form that does not achieve the development outcomes sought by the CDCP in terms of basement parking or built form (C5), or being capable of redevelopment in accordance with the CDCP (C6). The concept plans do not achieve the objectives of 4.2 regarding car parking (O1) and not restricting development opportunities (O3).
In relation to 8-10 Florence Street, the concept diagrams show a built form of approximately half of the site in a triangle arrangement, due to the laneway sought by the CDCP. Whilst the traffic and parking engineers considered some alternate locations for the laneway, this was not incorporated into the concept plans.
The planning experts agree that the CDCP seeks a continuous built form, which I accept. Whilst I also accept that a continuous built form can be achieved by multiple buildings developed separately, the concept plans show that this cannot be achieved as a result of the proposed development. When read with the proposed development and the concept for 14 Florence Street, all appear to be alien in their built form relationship and are not a continuous built form as shown in Drawing 54 extracted below:
Accordingly, I accept that the concept plans do not demonstrate that the required car parking can be accommodated or that the built form can achieve the development outcomes sought in the DCP contrary to C5 and C6 of 4.2. The concept plans demonstrate that the redevelopment potential would be restricted and the ability to provide basement car parking impacted, inconsistent with O3 of 4.2. The concept plans and develop typology relied on by Modern Development demonstrate that the likely impacts of the development would unreasonably reduce the redevelopment potential of adjoining sites and result in built forms that are inconsistent with the desired streetscape.
In considering the principles outlined in Stockland at [87], in my mind, the circumstances would not lead to applying less weight to the amalgamation controls. I accept the evidence of Mr Pearman in the Planning JER that the precinct controls were based on detailed strategic planning. There is no evidence that the CDCP was not subject to community consultation, acknowledging the submissions of adjoining neighbours who are acutely aware of the planning controls, and there is no evidence that the CDCP for the precinct has been selectively or inconsistently applied. Whilst the Court was taken to a site that demonstrated a variation, I don't accept that a variation rises to selective or inconsistent application of this part of the CDCP to give it less weight. Finally, there is no evidence that the CDCP either inherently or through the passing of time, is inappropriate.
The facts here can be distinguished from Statewide Planning Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1210 (Statewide) for three reasons. In Statewide, the Senior Commissioner was satisfied that the Applicant had made reasonable offers to purchase. Secondly, the applicable high density zoning permitted a range of permissible uses, including dwelling houses. Thirdly, the relevant planning controls in the Canterbury Development Control Plan 2012 were also of a different nature, relating to isolated sites, as opposed to site consolidation and lot amalgamation plans.
Accordingly, I accept Mr Pearman's evidence and Council's submissions that the site amalgamation controls have not been met and flexibility is not warranted pursuant to s 4.15(3A) of the EPA Act 1979 and C4-C6 of 4.2 of the CDCP.

Conclusion

In finding that section 4.2 site consolidation is not inconsistent with Chapter 3 of SEPP TI, I accept that the proposed variations to the site consolidation plan were not supported by genuine attempts to consolidate and evidence that the remaining sites could reasonably redevelop, contrary to section 4.2 of the CDCP.
In addition, the concept plans show that the likely impacts of the proposed development would lead to unreasonable impacts on the redevelopment of adjoining sites pursuant to s 4.15(1)(b) of the EPA Act 1979.
I therefore conclude that the amended DA warrants refusal.

Orders

The Court orders that: 1. The appeal is dismissed. 2. Development application number 2023/0118, as amended, for the removal of trees, demolition of existing structures and construction of a centre based child care facility at 12 Florence Street, South Wentworthville, is refused. 3. The exhibits are returned, except for exhibits A, C, 1.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 February 2025

(2004) 136 LGERA 254

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (3)