Obaid Investments Australia Pty Ltd v Canterbury-Bankstown Council

Pre-conditions to the grant of consent

1. The site is zoned R4 High Density Residential pursuant to the Bankstown Local Environmental Plan 2015 (LEP 2015). The application was lodged prior to the commencement of the Canterbury-Bankstown Local Environmental Plan 2023 (LEP 2023) and so LEP 2015 is saved (cl 1.8A(1) of LEP 2023). The relevant provisions of LEP 2023 are a matter for consideration pursuant to s 4.15(1)(a)(ii) of the EPA Act. The objectives of the R4 zone under LEP 2015 are: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
2. The proposal contravenes two development standards under LEP 2015, cl 4.1B(2)(b) regarding the minimum width of the site at the front building line and cl 4.3(2) regarding the height of buildings. The proposal contravenes the minimum solar access standard under s 19(2)(3) of State Environmental Planning Policy (Housing) 2021 (SEPP Housing).

Contravention of the minimum site front width development standard

1. Think Planners prepared a written request dated 11 December 2024 as part of the application seeking to vary the minimum site front width standard under cl 4.1B(2)(b) of LEP 2015, which is in the following terms: 4.1B Minimum lot sizes and special provisions for certain dwellings (1) The objectives of this clause are as follows - (a) to ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas, (b) to ensure that boarding houses in Zone R2 Low Density Residential retain the general low-density scale and character of existing single dwelling development, (c) to ensure that lots for non-residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, play areas, pedestrian access, set down and pick up areas, car parks, driveways and vehicle manoeuvring areas, (d) to minimise any likely adverse impact of the development on the amenity of the area, (e) where an existing lot is inadequate in terms of its area or width - to require the consolidation of 2 or more lots. (2) Despite any other provision of this Plan, development consent must not be granted to development on a lot in a zone shown in Column 2 of the table to this clause for a purpose shown in Column 1 of the table opposite that zone unless - (a) the area of the lot is equal to or greater than the area specified for that purpose and shown in Column 3 of the table, and (b) the width of the lot at the front building line is equal to or greater than the width specified for that purpose and shown opposite in Column 4 of the table. Column 1 Column 2 Column 3 Column 4 Residential Flat Building R4 Zone 1,500m2 30m
2. The site has an area of 1821.8m2 and a frontage to Waldron Road of 29.26m at the northern boundary.
3. Clause 4.6(3) of LEP 2015 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(3). The consent authority, or the Court on appeal, must be satisfied that, (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.
4. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.
5. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary is summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ('Wehbe') and repeated in Initial Action [17]-[21]: 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).
6. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).
7. The applicant's written request justifies the contravention of the standard on the bases that compliance is unreasonable or unnecessary because the site is significantly larger than the minimum size, which compensates for the very small variation to the minimum site front width. The proposal is therefore proportionate to the site and compatible with the desired future character of the high density residential zone.
8. The grounds relied on by the applicant 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] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). 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]).
9. I am satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the non-compliance with the standard as justified by the overall proportions of the site which is suitable for the proposal. I am satisfied that justifying the aspect of the proposal that contravenes the standard can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].
10. I am satisfied, based on the justifications in the written request, that the proposal is consistent with the zone objectives and the objectives of the standard.

Contravention of the height of buildings development standard

1. Think Planners prepared a written request dated 11 December 2024 seeking to vary the maximum height of building standard under cl 4.3(2) of LEP 2015.
2. The maximum height of buildings development standard for the site is 13m under cl 4.3 of LEP 2015. The maximum height of the proposal above existing ground level is 13.35m, at the front portion of the feature parapet wall.
3. The relevant objective for the height of buildings development standard is: (a) to ensure that the height of development is compatible with the character, amenity and landform of the area in which the development will be located
4. The applicant's written request justifies the contravention of the standard on the bases that compliance is unreasonable or unnecessary because the proposed exceedance of the standard is minor and the feature parapet of the proposal is designed to improve the built form presentation of the building. Other elements of the proposal that exceed the standard, to a lesser extent than the front parapet, provide internal amenity and ensure a 2.7m floor to ceiling height on each level.
5. I am satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that the applicant's justification for the aspect of the proposal that contravenes the standard can be properly described as an environmental planning ground.

Contravention of the solar access development standard under SEPP Housing

1. Think Planners prepared a written request dated 20 December 2024 as part of the application seeking to vary the minimum solar access standard under s 18(2)(e) of the SEPP Housing (as of 13 December 2023 pursuant to Sch 7A s 8(1)(a) of SEPP Housing). Section 18(2)(e) is in the following terms: (e) living rooms and private open spaces in at least 70% of the dwellings receive at least 3 hours of direct solar access between 9am and 3pm at mid-winter,
2. The applicant's written request justifies the contravention of the standard on the bases that compliance is unreasonable or unnecessary because the standard was amended to 2 hours of direct solar access for residential flat buildings within the Sydney Metropolitan Region to align with the Apartment Design Guide (objective 4A-1) after the lodging of the application. The proposal provides over 70% of apartments with 2 hours of direct solar access between 9am and 3pm at mid-winter.
3. I am satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that justifying the aspect of the development that contravenes the development standard can be properly described as an environmental planning ground.

Conclusion

1. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 21 January 2025 and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

1. The orders of the Court are: 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $6,750.00 within 28 days of the issue of a tax invoice. 2. The appeal is upheld. 3. Development Application No 95/2022, as amended, for the demolition of two existing single-storey cottages and construction of a four-storey residential flat building containing 31 apartments, of which 15 apartments are affordable housing under Ch 2 of the State Environmental Planning Policy (Housing) 2021, with single level basement car parking, landscaping, stormwater and associated site works, on land legally described as Lot 5 and Lot 4 in DP22196 and known as 25-27 Waldron Road, Sefton NSW 2162, is determined by the grant of development consent, subject to the conditions of consent at Annexure A.

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: 18 February 2025