Naddaf v Parramatta City Council

Land and Environment Court (NSW)|2020-05-14

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 860/2018 for the demolition of existing structures and construction of an attached dual occupancy and Torrens Title subdivision (the proposal) at 2 Jeffrey Avenue, North Parramatta (the site) by Parramatta City Council (the Council).
Section 34AA of the Land and Environment Court Act 1979 (LEC Act) applied to the proceedings at s 34AA(1)(a)(i). Following the Court's policy, "COVID-19 Further Restrictions" announced on 24 March 2020 and published on the Court's website, the proceedings were listed on 2 April 2020 for an audio-visual conference to be held on 14 May 2020. I presided over the conciliation conference held on 14 May 2020 and I determined that the matter proceed to a hearing forthwith pursuant to ss 34AA(3), (4) and 34C of the LEC Act because the parties advised me that they were unable to reach agreement.
Although I did not visit the site, I had the benefit of viewing a video of the locality made by the Council's planning expert and agreed photographs of the locality (Ex C).

The site and its context

The site is on the northern side of Jeffrey Avenue, to the east of the corner of Jeffery Avenue and Irwin Street. The site area is 596.3sqm. The site has a frontage of 15.24m.
The existing site contains a modest, single storey, brick clad dwelling.
There is a painted brick single storey dwelling to the east of the site at 4 Jeffrey Avenue and large two-storey pair of semi-detached dwellings at 6 and 6A Jeffrey Street. The locality includes mid-century modest, single storey brick dwellings and contemporary, large, two-storey dwellings and attached or semi-detached dwellings set in avenues of mature trees.

The proposal

The proposal is to demolish the existing structures on the site and construct full brick two-storey attached dual occupancy dwellings, each with a single garage and entry in the street elevation. Each dwelling has three bedrooms and a study/bedroom and private open space at the rear.
The proposal includes the Torrens Title subdivision of the existing lot into two lots, to form two semi-detached dwellings, each on their own lot.

Planning framework

The dictionary of LEP 2011 defines dual occupancy as follows: dual occupancy means a dual occupancy (attached) or a dual occupancy (detached). Note. Dual occupancies are a type of residential accommodation - see the definition of that term in this Dictionary. dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling. Note. Dual occupancies (attached) are a type of dual occupancy - see the definition of that term in this Dictionary.
The site is zoned R2 Low Density Residential under LEP 2011 and the proposal is permitted with consent. The objectives of the R2 zone, to which regard must be had, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment. • To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods.
Consent is required for the subdivision of the land (cl 2.6(1) of LEP 2011).
The minimum lot size development standard is 550sqm (cl 4.1(3) and Lot Size Map - Sheet LSZ_009 of LEP 2011). Clause 4.1(4B) provides an exception to the minimum lot size development standard for the subdivision of a dual occupancy development, as follows: (4B) Subclause (3) does not apply to the subdivision of a lot in any of the following zones if there is a dual occupancy on the lot and one dwelling will be situated on each lot resulting from the subdivision - (a) Zone R2 Low Density Residential…
Clause 4.6 of LEP 2011, Exceptions to Development Standards, is in the compulsory Standard Instrument terms.
Clause 6.11(1) of LEP 2011 is in the following terms: 6.11 Dual occupancies on land in Zones R2, R3 and R4 (1) Development consent may only be granted to development for the purpose of a dual occupancy on a lot in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone R4 High Density Residential if the lot has an area of not less than 600 square metres.
Part 3, section 3.7 of DCP 2011 includes relevant objectives and design principles for residential subdivision. The objectives are as follows: "O.1 To ensure that subdivision of land for residential development has regard to site opportunities and constraints. O.2 To ensure that subdivision respects the predominant subdivision pattern of the locality. O.3 To ensure that allotments of sufficient size are created to facilitate development that meets the requirements of this plan."
Part 4, Special Precincts of DCP 2011 includes at Section 4.2 Special Character Areas. Jeffrey Avenue is identified as a Special Character Area. The general objectives for Special Character Areas are as follows: "O.1 Development within each Special Character Area is to be compatible with the identified character and is to reinforce the special attributes and qualities of the area. O.2 Development should seek to maintain the level of residential amenity currently enjoyed and positively contribute to the distinctive characteristics of each area."
The Statement of significance, distinctive characteristics and design controls for the Jeffrey Avenue precinct are as follows: "Statement of Significance This land is one of the first areas in the vicinity of Parramatta to be totally designed and constructed by the Housing Commission, which resumed the land on 25 July 1947. It was surveyed in 1948 and the subdivision was drawn up by Parramatta surveyor H.C. de Low for the Housing Commission. The road layout is curvilinear in the manner typical of the post-war era. The streets are named after Parramatta aldermen and mayors. The area was developed with detached dwellings, mostly in brick with some fibro-cement with brick bases. It has a high standard of amenity, and with good management, will become more special as time goes by. The present residents stand to gain most from this special care. Distinctive Characteristics curvilinear road layout typical of the 1940s and 50s consistency in the scale, siting and design of houses with only minor obvious changes detached houses - two or three bays wide, with a projecting bay, often including the porch with wrought iron railing houses in brown, mottled brick or fibro-cement with brick base; low hipped roofs in terracotta or cement tiles, some with gabled ends clad in white painted weatherboards double hung sash windows with timber frames grassed front gardens merging with verge, some front boundaries defined by planting and a few low brick walls wire or paling fences separating the front and rear gardens narrow grassed verge without footpaths street tree planting of bottle brushes, in recent decades street tree planting of bottle brushes, in recent decades Design Controls Development consistent with the existing character of the area C.1 Additions at the rear of houses designed to have minimum impact on the façade and roof of the house, using similar materials, such as bricks matching original bricks. C.2 Additions that protect the views and amenity of neighbouring properties. C.3 Garages or carports in rear gardens. C.4 Carports beside the house at least 3m back from the front wall. C.5 Wire fences no higher than 1m. Development not consistent with the existing character of the area C.6 Painting, rendering or re-skinning of brick houses or the brick base of houses. C.7 Painting, rendering or demolition of brick fences. C.8 Front fences other than low walls marking the boundary."

Expert evidence

The applicants relied on the expert planning evidence of Jonathon Wood and the respondent relied on the expert planning evidence of Jeff Mead. The experts prepared a joint report, admitted into evidence as Ex 3. The experts were not required to give oral evidence.

Contravention of the development standard for minimum allotment size for a dual occupancy development

The development standard for minimum allotment size for a dual occupancy development is 600sqm (cl 6.11(1) of LEP 2011). The parties agreed that cl 6.11 is a development standard (see the definition of "development standard" at s 1.4 of the EPA Act).
The applicants provided a written request seeking to justify the contravention of the development standard prepared by Think Planners and dated 10 February 2020 (Attachment C to Ex 3).
Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ("Initial Action")). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicants' written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2011 (Initial Action at [29]).

The applicants' written request to contravene the development standard

The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicants' written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: "(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard."
The applicants bear the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicants' written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicants have addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] ("Wehbe") and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]): 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
The five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).
The applicants' written request justifies the contravention of the minimum lot size for dual occupancies development standard on the bases that compliance is unreasonable or unnecessary for the following reasons:

The proposal is consistent with the objectives of the R2 zone;
The shortfall in area of the site is minor, being 3.7sqm;
This shortfall will be indistinguishable from a complying development;
The existing lot is typical of the lot size within the subdivision and has sufficient width to accommodate the proposal. The typical site frontage will make this development indistinguishable from a dual occupancy development on a complying site because the small short fall is in the length of the site, as the site is a similar width but marginally shorter than the allotments to the east of the site.
The proposal is consistent with the established subdivision pattern.

I accept the reasons given by the applicants in the written request that compliance with the development standard for the minimum lot size for a dual occupancy development is unreasonable or unnecessary. I am satisfied that the minor numerical shortfall in the area of the site will still yield a development that is indistinguishable from a complying development, because the existing lot is typical of the lot size, particularly the width of lots, within the subdivision and is sufficient to accommodate the proposal.
The grounds relied on by the applicants in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).
I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicants' written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that justifying the minor numerical shortfall of the site area for a dual occupancy development as an imperceptible variation in the length of the site, but not the width, when compared to the typical neighbouring allotments in the subdivision, can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).
I am satisfied that the proposal is in the public interest because it is consistent with the relevant zone objectives, to provide for the housing needs of the community within a low density residential environment and to minimise impacts on the amenity of the low density residential environment.
The development standard does not have objectives. I accept the agreement of the planning experts that the objective of having a minimum lot size for dual occupancy development of 600sqm (greater than the minimum lot size development standard for the site of 550sqm) is to ensure that lots have sufficient area to comfortably accommodate two smaller, attached dwellings and maintain the amenity for future residents and neighbours. I am satisfied that the proposal demonstrates that the existing lot is capable of accommodating attached dwellings with reasonable amenity because each dwelling has a sufficient frontage to Jeffrey Avenue and the proposal complies with the controls for deep soil area and landscaped area, thus ensuring adequate private open space and setbacks to adjoining properties.
I do not accept the experts' agreement that an objective of the development standard is that the subdivision reflects the characteristic lot sizes and patterns of the area, because the minimum lot size of 600sqm for dual occupancy development applies irrespective of whether the lot is representative or reflective of the characteristic lot sizes and pattern of the area. In other words, if a lot is 600sqm (where dual occupancy is permitted) but atypical of the subdivision pattern around it, the development standard would be complied with for a dual occupancy development, regardless of the characteristic lot sizes and pattern of the original subdivision.

Impact on the Special Character Area

I accept that the applicants' submission that the design controls for the Jeffrey Avenue Special Character Area (SCA) address alterations and additions to an existing dwelling that is contributory to the distinctive characteristics of the SCA. I accept that the controls are directed towards the retention of the features of existing dwellings but are not addressed to new development.
I accept the applicants' submission that every lot within the SCA that meets the minimum 600sqm site area of the minimum lot size for dual occupancy development standard has the potential to be developed for dual occupancy development and that more than half of the existing lots in the SCA are eligible (coloured map attached to Ex A). Had the Council, as part of its strategic planning exercise, wanted to exclude the SCA from the operation of cll 4.1(4B) and 6.11, it could have done so, because it has prohibited dual occupancy development in some areas of the LGA (see the Dual Occupancy Prohibition Maps of LEP 2012).
I accept the applicants' submission that none of the controls for the SCA state that dual occupancy development is out of character with the character of the SCA.
I agree with Mr Mead's opinion that the subdivision of the existing lot into two Torrens Title lots will result in lots that are inconsistent with the prevailing lot pattern in the SCA. Nothing in the distinctive characteristics or the design controls for the SCA explicitly identifies the prevailing subdivision pattern as significant, other than the inference contained in the characteristic, "consistency in scale, siting and design of houses". Nevertheless, the operation of cl 4.1(4B) of LEP 2011 will erode the subdivision pattern of the SCA, because it provides an exception to the minimum lot size development standard for the subdivision of dual occupancy development. As a consequence, the subdivision of attached dual occupancies to form semi-detached dwellings on their own Torrens Title lot will inevitably result in uncharacteristically small lots within a historic subdivision such as North Parramatta, because it permits what might otherwise be a typical lot to be divided into two lots.
I accept the applicants' submission that nothing in Part 3.7 of DCP 2011 can be grounds for refusal, because Part 3.7 does not address dual occupancy development.
I am satisfied that the design of the proposal achieves the general objectives of SCAs because the materials and scale of the proposal are compatible with the identified character and distinctive characteristics of the Jeffrey Avenue SCA and the proposal maintains a reasonable level of residential amenity.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 860/2018 for the demolition of existing structures and construction of an attached dual occupancy and Torrens Title subdivision at 2 Jeffrey Avenue, North Parramatta, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than Exhibits 1, 3, A, B and D, are returned.

Susan O'Neill Commissioner of the Court Annexure A (pdf)

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: 16 June 2020

(2018) 236 LGERA 256

(2007) 156 LGERA 446

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Judgment (12 paragraphs)

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Cases Cited (6)