Naimo v Randwick City Council

The site and its locality 3The site is located on the southern side of Haig Street near its cul de sac and Maroubra Road. It is rectangular in shape and comprises two allotments with a total area of 1317 sqm. Each allotment is developed with a single storey detached dwelling with a separate garage. The site has a gentle fall to the rear of about 0.5m and there is no significant vegetation. 4To the west, the site adjoins an unformed lane, known as French Lane, which provides pedestrian access between Haig Street and French Street. On the opposite side of French Lane are single storey semi detached dwellings (117 - 119 Haig Street). A church hall and St Johns Church (339A Maroubra Road) adjoin the site to the east. To the south, the site adjoins single detached dwellings (30 - 34 French Street). Opposite the site, is a small triangular reserve at the corner of the Haig Street cul de sac and Maroubra Road. This adjoins a child care centre (339 Maroubra Road) which faces Maroubra Road and presents as a blank wall to Haig Street. 5The locality is predominantly residential with a mixture of detached and semi detached dwellings and some residential flat buildings. A neighbourhood shopping centre is located in Maroubra Road next to the child care centre.

Proposal 6The development application was lodged on 29 March 2011 and proposed the demolition of the existing structures and construction of a two storey affordable housing development, in the form of a residential flat building, comprising 20 residential units and 20 basement car spaces. Council refused the application on 14 October 2011. 7At the commencement of the hearing the application for which consent was sought was for 18 residential units and ten basement car spaces. During the hearing the application was further amended to reduce the number of units to 15. The amendments were made in response to the contentions raised by council and the evidence of the experts and objectors in relation to the solar access to the units, overshadowing of 119 Haig Street and the compatibility of the design of the proposal with the character of the local area.

Planning framework 8The site is within Zone No 2A (Residential A Zone) under Randwick Local Environmental Plan (Consolidation) 1998 (RLEP). The proposed development is defined as "multi unit housing" and is prohibited in the 2A Zone. Dwelling houses, attached dual occupancies and boarding houses are permissible with consent. 9Under Draft Local Environmental Plan 2012 (Draft LEP) the site is within the R2 Low Density Residential zone. Multi unit housing is not permissible within this zone. 10The development application was lodged on 29 March 2011 and State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) was in force at the time the application was made. 11Division 1 of Part 2 of SEPP ARH refers to infill affordable housing. Clause 10 identifies land to which the Division applies. Clause 11 sets out the forms of development to which the Division applies. Clause 12 permits development to which the Division applies to be carried out with consent. Clause 14 provides standards that cannot be used to refuse consent including density and scale, site area, landscaped area, deep soil zones and solar access. Clause 15(1) requires consideration of the provisions of Seniors Living Policy: Urban Design Guidelines for Infill Development. 12On 20 May 2011, the SEPP ARH was amended by State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011 (Amending SEPP). The parties agree that the proposed development is not permitted with development consent in the 2A Zone under RLEP. Consequently, the development would not be permissible under the Amending SEPP, other than for the savings and transitional provisions in cl 54A(2). The parties agree that the application should be determined as if the Amending SEPP has not been made, other than the mandatory consideration in cl 54A(3) which provides: (3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 13The compatibility of the design of the development with the character of the local area was a key issue in dispute between the parties. Following their written submissions, the parties also disagree on whether the proposal is permissible under SEPP ARH. These matters are discussed later in the judgment. 14Randwick Development Control Plan-Multi unit housing (DCP) applies to the site.

Evidence 15The Court visited the site and heard from objectors to the proposal. Their main concerns reflect those which are summarised in the Statement of Facts and Contentions filed by the council on 4 June 2012 (S of FC): + Out of character with the streetscape and locality as it involves construction of a multi-unit housing development in a low density residential 2A zone. + Overdevelopment resulting in excessive bulk and scale. + The proposal will put pressure on on-street parking and generate significant additional traffic. + Unacceptable overshadowing impacts. + Unacceptable privacy impacts. + Potential for crime and anti-social behaviour. + Short term benefit of 50% affordable housing but permanent unacceptable impacts from building. + Undesirable development precedent in the Residential 2A zone 16The main concern of the adjoining owner at 119 Haig St was the loss of solar access to his living area and privacy impacts. The adjoining owners of the properties to the rear (32-34 French St) were principally concerned about loss of amenity resulting from overlooking of their properties, particularly their rear open space, increased noise and the height and bulk of the proposal. 17The Court heard expert planning and urban design evidence from Mr S McDonald and Mr J Knapp, for the council, and Mr R Fleming and Ms G Morrish, for the applicant. Is the proposal permissible? 18Contention 1 in Part B.1 of the S of FC provides: The proposed development is prohibited development within the relevant current Zone 2A (Residential A Zone) under Randwick Local Environmental plan 1998. The proposed development is also prohibited under clause 10(1) in Part 2 of SEPP (Affordable Rental Housing ) 2009 because the development site is not within the relevant zone prescribed in the Standard Instrument and is not within a land use zone that is equivalent to any of those prescribed Standard Instrument zones referred to in the said clause 10(1). 19The Particular to Contention 1 referred to cl 10(1) of SEPP ARH which provides: This Division applies to a development site on land if the development site is within any of the following land use zones or within a land use zone that is equivalent to any of those zones, but only if development for the purposes of dwelling houses, multi-dwelling housing or residential flat buildings is permissible within the zone: (a) Zone R1 General Residential, (b) Zone R2 Low Density Residential, (c) Zone R3 Medium Density Residential, (d) Zone R4 High Density Residential. 20The four zones identified in cl 10(1) are zones taken from the "standard instrument" as defined in clause 4 of SEPP ARH. The standard instrument is contained within the Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument). 21Clause 5 of SEPP ARH is relevant to the interpretation of clause 10. It provides: 5 Interpretation - references to equivalent land use zones (1) A reference in this Policy to a land use zone that is equivalent to a named land use zone is a reference to a land use zone under an environmental planning instrument that is not made as provided by s33A(2) of the Act: ....... (b) ... is a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone. (2) An assessment made by a relevant authority under sub-clause 1(b) applies only in respect of the particular development that is proposed to be carried out and more than one such assessment may be made in respect of the same land use zone. 22The expression "equivalent land uses" in clause 5(1)(b) is not otherwise defined. 23During the hearing, the parties did not press Contention 1 as council had advised the applicant by email (Exhibit Q) that as it has "now resolved to adopt the draft local environmental plan there would be little utility in pursuing that contention" on the basis that the site would be within the R2 zone under the Draft LEP, which is a nominated zone under cl 10(1). The parties provided no other documentation to support the resolution of this contention. 24As the permissibility of the development is a condition precedent to my granting consent and given the recent decision of Sheahan J in Chehade v Bankstown City Council [2012] NSWLEC 221 (Chehade 56A), I requested the parties to provide brief written submissions to support their opinion that the 2A zone under RLEP is an "equivalent zone" for the purpose of cl 10(1) of SEPP ARH. 25Council provided its written submissions on 16 October 2012, and for the reasons which I will discuss later, submitted that the zones are not equivalent and therefore the proposed development is not one to which clause 10(1) applies and consequently the development is not permissible. 26The applicant provided its written submissions on 18 October 2012. The submissions were in two sections. The applicant explains: Section 1 is written on the basis that the findings of the Court in Chehade 56A are correct. Section 2 sets out submissions by the applicant as to why the decision in Chehade 56A is not correct and should not be followed. 27For the reasons that I will discuss later, the Applicant submits in both sections "the 2A Zone is a land use zone in which equivalent land uses are permitted to those in zone R2 in the Standard Instrument." Therefore, cl 10(1) of SEPP ARH applies and the development is permissible. 28The parties agree on the relevant framework under SEPP ARH and that the fact that a draft LEP has been prepared is not relevant as it is not a consideration contemplated by cl 10(1) or cl 5. They agree that the site is not within any of the four zones identified within cl 10. Accordingly, under cl 5(1)(b), Division 1 would only apply if the site were within a land use zone, being the 2A zone under RLEP, that is equivalent to a named land use zone, being the R2 zone under the Standard Instrument. 29The relevant question is whether, upon the proper construction of SEPP ARH, the 2A zone is "a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in" the R2 zone. 30In Chehade 56A, Sheahan J dismissed an appeal under s56A of the Land and Environment Court Act 1979 (LEC Act) against the decision of Morris C in Chehade v Bankstown City Council [2012] NSWLEC 1122 (Chehade). These decisions outline the principles to form the opinion required by cl 5(b)(1). In Chehade 56A, Sheahan J prefers the submissions of the council which outline: ....a comparison exercise for each of the zones. It involves identifying the zones, it involves identifying the land uses that are permitted in the two zones and the final step involves forming the opinion as to whether equivalent land uses are permitted to those permitted in the named zones, nothing more than that, nothing less than that. To qualify that process by saying that it involves getting a feel for the zones, getting a vibe from the zones, having a look at the objectives of the SEPP, having a look at the objectives of the Act we submit is to amend without proper justification, the clear words of the clause. ... the comparison exercise starts with the named zone for the purposes of this application the named zone is one of the zones identified in 26A through to G, they are the R1, R2, R3, R4, B1, B2 or B4 zones and gives to the consent authority as a matter of, not only quantitative but qualitative assessment for the task of forming the view, or to use the terminology within the clause forming the opinion, that equivalent land uses are permitted in one to the other. 31The applicant (based on Section 1 of its submissions) and the council undertook a comparison of the permissible land uses in the 2A zone and those in the R2 zone in accordance with the decision in Chehade 56A. The parties identified different sets of land uses that are permitted in the two zones and formed different opinions on whether "equivalent land uses" are permitted in the 2A zone to those permitted in the R2 zone. Applicant's first submission 32The applicant includes land uses in the R2 zone which are permissible under State Environmental Planning Policy (Infrastructure) 2007 (ISEPP) on the basis that clause 1.9 of SEPP ARH makes "land uses permitted in the R2 zone subject to the provisions of any SEPP that prevails over the LEP" which includes ISEPP. The applicant also includes uses in the R2 zone that are permissible under cl 5.12 of the Standard Instrument. "Group Homes" are included in the 2A zone on the basis that they are a species of a "dwelling". 33The Applicant's submissions include the following Table prepared in the format similar to that used by Morris C in Chehade. Development for the purpose of: RLEP Zone 2A (Residential A Zone) Standard Notes Instrument R2

Attached Dual Occupancy · Bed and Breakfast Accommodation · Boarding Houses · · Bushfire hazard reduction · · Clause 5.11 Standard Instrument Child care centres · Communication Facilities · o Permissible pursuant to Part 3 ISEPP and clause 5.12 of the Standard Instrument. Community facilities · Dwelling houses · · Earthworks · Educational establishments · o Permissible pursuant to Part 3 ISEPP and clause 5.12 of the Standard Instrument. Group homes o · Permissible in 2A zone as species of Dwelling Health consulting rooms · Home activities · · Home Occupation Outdoor advertising · Places of worship · Public transport · o Permissible pursuant to Part 3 ISEPP and clause 5.12 of the Standard Instrument. Public utility undertakings · o Permissible pursuant to Part 3 ISEPP and clause 5.12 of the Standard Instrument. Recreation · Recreation facilities · Roads · ·

34The applicant submits that the Table shows: ......the 2A zone has 19 permissible uses either with or without consent and that the R2 zone has 5 permissible uses. When the two tables are compared the two zones have 4 uses in common being boarding houses, dwelling houses, home occupations and roads. ....... the R2 and the 2A zone are equivalent land use zones when one applies both a quantitative and qualitative test as sanctioned by Chehade 56A. If one includes Bushfire Hazard Reduction, Communication Facilities, Educational Establishments, Public Utility Undertakings and Public Transport as permissible in the R2 zone by operation of cll 1.9 and 5.12 of the Standard Instrument and Section 8(1) of ISEPP then quantitatively there are 10 uses in common between the 2A zone and R2 zone. This leaves 10 uses which are permissible in the 2A zone which are not listed in the R2 zone. None of those uses are prohibited in the R2 zone. Those uses are Attached dual occupancy; Bed and breakfast accommodation; Child care centres; Community facilities; Earthworks; Health consulting rooms; Outdoor advertising; Places of worship; Recreation, Recreation facilities. When one looks at the 10 uses in the 2A zone not permitted in the R2 zone the Court would be satisfied qualitatively that the nature of those uses do not prevent a finding of equivalence between the zones. Attached dual occupancy, Bed and breakfast accommodation and Health consulting rooms are dwellings or uses carried out from dwellings according to their definitions in RLEP. Earthworks and Outdoor advertising are neutral in nature. Childcare Centres, Community facilities, Places of Worship, Recreation and Recreation facilities are not uses prohibited in the R2 zone and are entirely compatible with and supportive of affordable housing development....... The applicant submits that the Court can comfortably form the opinion that the 2A Zone is "a land use zone in which equivalent land uses are permitted to those permitted in" the R2 zone. Council's submissions 35The council adopted a more limited list of permissible uses, including only those uses, which are permissible with or without consent in the zoning table for the 2A zone and those uses listed as permissible in the R2 zone under the Standard Instrument. The council submits: + Dwelling houses and home offices/businesses/occupations are common however the variation in the number of permitted uses is wide. The uses under the R2 zone are more confined; + There is a substantially larger number of permitted uses (15 more) under the RLEP; + The nature of the uses is more extensive and markedly different under the RLEP including such uses, for example, as educational establishments, places of worship, public transport and child care centres. ........ the zones are not equivalent and, consequently, the requisite opinion cannot be formed. As such the proposed development is not one to which clause 10 applies and consequently Division 1 of Part 2 of the SEPP does not apply. Consequently, development may not be carried out with consent pursuant to clause 12 of the SEPP. Findings 36The uses that are agreed to be common to both land use zones are boarding houses, dwelling houses, home activities/occupations and roads. 37For the reasons outlined above, the applicant submits that a greater number of uses are permissible in the R2 zone and that "quantitatively there are 10 uses in common between the 2A zone and R2 zone". The applicant submits that "qualitatively" the nature of the 10 uses in the 2A zone which are not permitted in the R2 would not prevent a finding of equivalence between the zones. 38Even if I were to accept the applicant's submission in relation to the quantitative assessment, there are still 10 additional uses in the 2A zone that are not common with the R2 zone. I do not accept the applicant's qualitative assessment that the nature of these uses is equivalent. The applicant acknowledges that Childcare Centres, Community facilities, Places of Worship, Recreation and Recreation facilities are uses that are permitted in the 2A zone but are not included as permissible uses in the R2 zone. While these may be uses that are not "prohibited in the R2 zone and are entirely compatible with and supportive of affordable housing development" they are not "permitted" in the R2 zone. They may not be significant numerically, but by their nature they result in a set of uses in the 2A zone that is significantly different to the set of uses in the R2 zone. 39The 2A zone under RLEP is therefore not a land use zone in which equivalent land uses are permitted to those permitted in the R2 zone under the Standard Instrument. Clause 10(1) of SEPP ARH therefore does not apply and the proposal is prohibited. The applicant's second submission 40In the event that the Court did not accept that the land uses are equivalent based on the above methodology, the Applicant made an alternate submission as to "why the decision in Chehade 56A is not correct and should not be followed". 41The second submission is based on a review of the established principles relevant to the construction of environmental planning instruments. The detailed written submissions apply these principles to the interpretation of cl 5 and cl 10 of SEPP ARH to determine the "proper interpretation" of the words "a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone" in cl 5(1)(b). 42The applicant submits: ....clause 5 is satisfied if the majority of the land uses relevant to affordable housing and permitted in the R2 zone (or their equivalent) are permitted with or without consent in the 2A Zone. All land uses in the R2 zone being boarding houses, dwelling houses, group homes, home occupations and roads are permissible in the 2A zone. Group homes are a form of dwelling house and therefore permissible as such in the 2A zone. Home occupations are equivalent to home activities when regard is had to their definition. In the applicant's submission, such an approach best accords with the intent of the SEPP which expressly identifies each of those named zones as zones in which affordable housing is permissible notwithstanding the individual and vastly different permissible land uses both in number and in type. Clause 5 is properly to be regarded as simply asking whether the existing zone is equally as suitable for affordable housing as any of the named zones whose suitability is unarguable based on the provisions of clause 10(1). 43The Applicant's submissions review the decision of Sheahan J in Chehade 56A and Morris C in Chehade. The Applicant "does not agree that because clause 5(1)(b) refers to "equivalent land uses" in the plural that regard must be had to the set of uses rather than a direct comparison with individual uses: Commissioner Morris [30] and Sheahan J [27]". 44The applicant submits: .....the use of the plural simply recognises that there are multiple uses permitted in the named land use zones and that there should be equivalent land uses (to those named land uses) in the existing zones. The text does not, in the applicant's submission, mandate a requirement to be satisfied that the full set of uses in the existing zone are also in the named land use zone. The obvious intent of the clause which informed the interpretation of cl10 is to ensure that an existing zone has at least the range of uses in the R1, R2, R3 or R4 zones. As previously submitted, any development site located in any one of these named land use zones may be the subject of affordable housing, whether the incorporated R1-R4 zones contain the limited template uses or a dramatically expanded suite of uses by reason of the method adopted by a particular Council when it prepares its template based LEP. In such circumstances why should it be relevant to permissibility that an existing zone permits uses additional to those prescribed for the R1-R4 zones in the standard instrument. 45The council made no submissions in response to the Applicant's second submission on the alternate construction of cl 5(1). Findings 46The land use zone and the local environmental plan considered by Morris C in Chehade are different to those currently before the Court. Even if they were the same, Clause 5(2) of SEPP ARH requires that more than one assessment under cl 5(1)(b) may be made in respect of the same land use zone and any assessment of equivalency applies only in respect of the particular development proposed to be carried out. Clearly, I am required to undertake an assessment required by cl 5(1)(b) of whether equivalent land uses are permitted in the 2A zone under RLEP to those permitted in the named land use zone, being the R2 zone under the Standard Instrument. 47Regardless of the merits of the Applicant's second submissions, I am bound by the principles established by Sheahan J in Chehade 56A in undertaking the required assessment. I note that these principles were followed by Lloyd AJ in Abdo v Fairfield Council: Tony and Janet Partners Pty Ltd v Fairfield Council; Abdo v Fairfield Council (No 2) [2012] NSWLEC 247. 48Chehade 56A was an appeal on a question of law under s56A of the LEC Act against the decision by Morris C in Chehade. His Honour endorsed the reasoning of Morris C, who undertook a comparison between the R1 and R2 zones and the uses permissible in the 2(a) zone under Bankstown LEP 2001. Although all the uses in the R1 zone and the R2 zone, with the exception of boarding houses, were permissible in the 2(a) zone, the Commissioner noted it is clear that the 2(a) zone permits a greater number of land uses (25 in total) than that prescribed in the standard instrument in either the R1 (15) or R2 (3) zones [29]. 49At [30] the Commissioner stated as follows: That consideration takes into account the land uses (plural) that are permitted and therefore, regard must be had to the set of uses rather than a direct comparison with individual uses. I have also considered the number of uses, and the nature of those uses. However, in my opinion, either manner of assessment would lead to the same conclusion that the 2(a) zone is not equivalent to either the R1 or R2 zones under the standard instrument. 50The submissions of the applicant in Chehade 56A pressed a purposive approach to the interpretation of cl 5(1)(b), albeit a different one to that proposed by the applicant in this appeal. In his consideration, Sheahan J stated at [45] to [47]: There is much to commend purpose construction and the various articulations of the relevant principles, but, in this case, the purpose of the SEPP is to facilitate more affordable housing in various ways, depending upon the planning principles applying to different areas and different types of affordable housing ([17] above). To this end, cl 5 is formulated in a quite specific way, distinct from the way other provisions relevant to different areas and types of affordable housing (in the other six divisions of Part 2 - [17]) are formulated. Strict adherence to the precise terms of each provision is clearly mandated by the structure and terms of the instrument itself, and neither works a mischief, nor leads to an absurdity. In those circumstances it is wrong to go behind the provisions, or to read additional matter into them. 51Even if I were to agree with the submissions of the Applicant that the reasoning in Chehade 56A is wrong, I am bound by its reasoning. The principles it outlines in construing cl 5 of SEPP ARH are the principles I must employ to form the opinion of equivalence required by cl 5(1)(b). In employing these principles, I have formed the opinion at [39] that equivalent land uses are not permitted in the 2A zone under RLEP to those permitted in the R2 zone under the Standard Instrument. Clause 10(1) of SEPP ARH therefore does not apply and the proposal is prohibited. 52For these reasons the application must fail. For completeness, I will briefly discuss the other issues in dispute between the Parties. Compatibility of the design with the local area 53The experts generally agree on the local area, its visual catchment and character. They referred to the decision of Roseth SC in Project Venture Pty Ltd v Pittwater Council [2005] NSWLEC 191 as establishing appropriate principles to access compatibility. 54The key disagreement between the urban design experts was whether the design of the proposal adequately responded to the subdivision pattern and "fine grain" of the local area. Mr Knapp's main concern was that part of the character of the area is the separation between buildings. He acknowledged that the recess and articulation in the front of the proposal was an attempt to separate the building into two elements to reflect the existing pattern of development but he did not consider that this had been adequately addressed. 55Ms Morrish considered that the proposal responded appropriately to the essential elements of the area. She noted that the area to the east of French Lane, which included the church and childcare centre, had a different character to the residential development to its west. In her opinion, the proposal formed an appropriate transition between these two areas. The proposal responded to the residential character of the area, particularly to the recent dwelling houses, and provided compatible building height, setbacks, landscaping and materials. Solar access and overshadowing 56Mr Knapp and Mr King held different opinions as to whether the proposal complied with cl 14(1)(e) of SEPP ARH which provides that consent cannot be refused on the grounds of solar access if living rooms and private open spaces for a minimum of 70% of the units receive a minimum of three hours of direct sunlight between 9am and 3pm in midwinter. The key disagreement was whether a skylight provided "direct sunlight". They also disagreed on the reasonableness of the overshadowing to the living room of 119 Haig Street. Amended plans 57During the hearing, Ms Morrish prepared sketch plans (Exhibit O) which Mr Knapp agreed, in principle, would address his concerns in relation to character of the area, solar access to the units and overshadowing of 119 Haig Street. The changes reduced the number of units from 18 to 15 by combining units 1 and 2 (new unit 1); units 10 and 11 (new unit 9): and units 14 and 15 (new unit 12). These changes increased the front setback of the north west unit, increased the width and depth of separation between it and the north east units, increased the size of the communal courtyard on the western side and introduced an indented terrace to new unit 12. The plans also include privacy measures such as horizontal and vertical louvres and highlight windows. 58Ms Morrish and Mr Knapp prepared a further joint report (Exhibit 6) in response to amended plans. They agreed that over 70% of the units would receive a minimum of three hours of direct sunlight between 9am and 3pm in midwinter and therefore the proposal complies with cl 14(1)(e) of SEP ARH. 59The experts also agree that the increased size of the courtyard will reduce the overshadowing to the east window of the living area at 119 Haig Ave to an acceptable level. The living room will receive three hours (between 9.30 and 12.30) of solar access from this window. In addition, it will receive solar access from the west highlight windows to this room between 2-3pm. 60The experts considered that the amendments to "break" the building into two elements had not been adequately incorporated into the plans. They recommended further changes to better reflect the Exhibit O plans. Subject to these changes, the council, in its oral submissions, accepted that the design of the development is compatible with the character of the local area. 61The council also submitted that acceptable solar access and overshadowing were achieved and that the other contentions in dispute between the parties had been satisfactorily resolved. 62Plans that reflect the agreement of the experts and council's submission were filed on 8 and 15 October 2012. Other issues 63The residents raised additional concerns in relation to privacy. The experts have agreed that due to the separation distances, level changes and screens, acceptable privacy will be maintained. Council did not press this issue. The residents also raised concerns about the traffic and parking. Council did not raise parking and traffic as an issue in the proceedings. In the absence of expert evidence to the contrary, I accept that these matters would not warrant refusal of the application.

Conclusion 64Through amendments to the plans the issues in dispute between the Parties on the merits of the application have been resolved. I accept that the amended design is compatible with the character of the local area and that cl 54A(3) of SEPP ARH has been adequately addressed. The proposal also meets the requirements in cll 14 and 15 of the SEPP ARH. There is no reason on merits that would warrant refusal of the application. 65The only contention remaining in dispute between parties is whether cl 10(1) of SEPP ARH applies to the site and consequently whether the development is permissible. For the reasons which I have discussed above, I have fond that it does not and that the application is therefore prohibited and consent cannot be granted,

Orders 1.The appeal is dismissed. 2.The development application for an affordable housing development at 121-123 Haig Street, Maroubra is refused. 3.The exhibits may be returned. Annelise Tuor Commissioner of the Court

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: 30 January 2013