Pei Long Wu v Lane Cove Council [2012] NSWLEC 1218 | Case summary

Land and Environment Court (NSW)|2012-07-19|Before: Mr J

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 15/2012 (the application) by Lane Cove Council (the Council) for the demolition of the existing dwelling and the construction of a new 3 and 4 storey dwelling at 8 Kullah Parade, Lane Cove (the site). 2The appeal was subject to mandatory conciliation on 19 July 2012 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. The conciliation conference commenced on site and the Court, in the company of the parties and their experts, conducted a view of the surrounding area and heard from a number of resident objectors. 3 As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i).

The site and its context 5No 8 Kullah Parade, Lane Cove is located on the northern side of Kullah Parade and the rear of the site backs onto Mindarie Street. The site has a frontage of 15.246 m to Kullah Parade and a site area of 638 m2. The site falls steeply from Mindarie Street to Kullah Parade and contains a single storey dwelling. 6The Stringy Bark Creek Bushland (Batten Reserve) is on the southern side of Kullah Parade. The northern side of Kullah Parade consists of dwelling houses, ranging from single storey dwellings to one and two storey dwellings over a basement garage. 7Mindarie Street generally consists dwelling houses with some residential flat buildings in the vicinity of the site, including a two and three storey public housing apartment block to the east of the rear of the site and fronting Mindarie Street. There is current development consent for the demolition of three dwellings and the construction of a four storey residential flat building on the northern side of Mindarie Street.

The proposal 8Leave was granted to the applicant to rely on amended plans, which was not opposed by the Council, subject to the Court making an order for the payment by the applicant of those costs of the Council that are thrown away as a result of amending the development application, pursuant to s 97B of the EPA Act. 9The amended proposal consists of the following:

Basement level of 4 car garage, accessed from Kullah Parade and stair access to the upper levels;
Ground floor consisting of 4 bedrooms with ensuite bathrooms and storage areas and a sitting room;
First floor consisting of a family room, master bedroom suite, bathroom, laundry and home theatre/gym room; and
Second floor consisting of the entry to the dwelling, accessed from Mindarie Street, dining, kitchen, breakfast, lounge and bathroom with an external terrace running along the southern side and a large planter box.

The planning framework 10The site is located within the R4 Zone - High Density Residential, pursuant to Lane Cove Local Environment Plan 2009 (LEP 2009). Development for the purposes of a dwelling house is prohibited within the R4 Zone. The site benefits from existing use rights, pursuant s 107(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), for the purposes of a dwelling house. 11An existing use may be rebuilt, pursuant to s 41(1)(c) of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations). Development consent is required for the rebuilding of the dwelling house, pursuant to s 107(2)(a) of the EPA Act. 12Section 108(3) of EPA Act, states: An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. 13A draft LEP has been prepared which includes a proposal to rezone the properties to the north of Kullah Parade, between the western end of Kullah Parade and Giraween Avenue, to E4 - Environmental Living. The planning proposal has been approved by the Minister for exhibition under the Gateway process and community consultation has been conducted in accordance with the requirements of the Minister. The planning proposal was referred to the NSW Department of Planning and Infrastructure on 30 April 2012 requesting gazettal. 14Dwelling houses are permitted with consent in the E4 - Environmental Living Zone and the E4 zone adopts the floor space ratio (FSR) and height controls of the R2 - Low Density Residential Zone, which are FSR 0.5:1 and a maximum height of 9.5m. The objectives of the E4 - Environmental Living Zone are as follows: To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. To ensure that residential development does not have an adverse effect on those values. 15The site is identified as bushfire prone, by the Bushfire Prone Land Map (Exhibit 7). 16The aims of LEP 2009 include, at clause 1.2(2): (c) in relation to residential development, to provide a housing mix and density that: (i) accords with urban consolidation principles, and (ii) is compatible with the existing environmental character of the locality, and (iii) has a sympathetic and harmonious relationship with adjoining development, 17The zone objectives of LEP 2009 include, at clause 2.3(2): The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 18The development control for the height of buildings, at clause 4.3 of LEP 2009, states: (1) The objectives of this clause are as follows: (a) to minimise any overshadowing, loss of privacy and visual impacts of development on neighbouring properties, particularly where zones meet, and (b) to maximise sunlight for the public domain, and (c) to relate development to topography. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. (2A) Despite subclause (2), the maximum height for multi dwelling housing on land in Zone R2 Low Density Residential is 5 metres. 19The development control for FSR, at clause 4.4 of LEP 2009, states: (1) The objectives of this clause are as follows: (a) to ensure that the bulk and scale of development is compatible with the character of the locality. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. (2A) Despite subclause (2): (a) the maximum floor space ratio for multi dwelling housing on land in Area 1 on the Floor Space Ratio Map is 0.4:1, and (b) the maximum floor space ratio for a building containing shop top housing on land in Area 2 on the Floor Space Ratio Map is 2.5:1. 20The relevant objectives for dwelling houses and dual occupancies, at clause 1.1 of the Lane Cove Development Control Plan 2009 (DCP 2009) are as follows:

Provide dwellings in landscaped lots.
Ensure new dwellings and alterations & additions to existing dwellings are well designed and compatible with the surrounding context and enhance the streetscape within the area. 21The relevant objectives of setbacks, at clause 1.3 of DCP 2009 are as follows: 7 Maintain the predominant street setback. 8 To enhance and maintain vegetation corridors through landscaping within front and rear gardens and side boundaries. 9 Side and rear setbacks are to provide building separation, sunlight, landscaping, ventilation, public views (if appropriate) for the dwelling and its neighbours. 22Clause 1.3.2 Side setbacks, of DCP 2009 includes the following: a) Side setbacks are to be a minimum of: I. 1.2m for a single storey dwelling II. 1.5m for a two storey dwelling. Irregular sites may be considered on their merits. 23The relevant objectives for cut and fill, at clause 1.6 of DCP 2009 are as follows: 1 Retain the natural ground levels as much as possible of a site and its existing landforms particularly in relation to the street or adjacent private open space areas. 2 To achieve reasonable landscaping within development. 3 To minimise the extent of cut and fill and its impact along side boundaries. 4 To create a consistent relationship between the dwelling and the street. 5 To ensure that excavation and filling of a site does not result in unreasonable amenity impacts to adjoining dwellings. 6 To minimise change to water run-off patterns. 24The provisions for cut and fill include, at clause 1.6 of DCP 2009 the following: d) Development is limited to a maximum depth of excavation or fill of 1m at any point on the site unless it is demonstrated that the site's slope is too steep to reasonably construct a 2 storey dwelling with this extent of excavation. 25The objectives for building design, at clause 1.7, include the following: 1 Ensure new dwellings and alterations and additions to existing dwellings reinforce the typical bulk and scale of existing dwellings within the street and the area. 2 Ensure that alterations and additions to existing dwellings maintain the integrity of the design and style of the existing building. 3 Ensure elevations to the street and public domain are well proportioned and designed. 4 Minimise impact in terms of overshadowing, loss of privacy, light spillage to adjoining properties, loss of views and amenity. 26Clause 1.7.1 Height of DCP 2009 includes the following: c) The maximum height of a parapet roof is to be 600mm above the maximum wall height of a dwelling. d) The maximum height for a pitched roof house is 9.5m above ground level (existing). e) A maximum of 2 storeys plus basement is permissible at any point above ground level (existing). No building will be permitted to have an appearance (in elevation) exceeding three storeys in height.

Public submissions 27The Court heard from three resident objectors, one who lives in the vicinity of the site and two who live on the opposite side of the Stringy Bark Creek Bushland reserve. One of the resident objectors is the president of the Stringy Bark Creek Residents' Association (SBCRA) and she stated that her evidence was given on behalf of the 131 members of the SBCRA. 28The residents' objections to the proposal, in summary, are:

That the proposal will result in an uncharacteristic development;
That the proposal will have the appearance of an apartment block; and
That the proposal is contrary to the proposed E4 zoning.

Expert evidence 29Expert planning evidence was heard from Mr Tony Polvere for the applicant and Mr Steven Layman for the Council.

Is the bulk and scale of the development compatible with the character of the locality? 30The planning experts agree that the proposal requires 2.7 m of excavation at the rear of the basement garage and that the proposal complies with the maximum height control of 9.5 m. 31The experts agree that the proposal benefits from existing use rights, as defined by s 106(a) of the EPA Act. 32According to Mr Layman, the proposal will appear as two habitable storeys over the basement garage level when viewed from Kullah Parade directly in front of the building and it will appear as a three and four storey development when viewed obliquely from Kullah Parade. Mr Polvere disagrees and in his opinion, the proposal will appear as a three storey development from all view points in Kullah Parade. 33According to Mr Layman, the height and FSR development standards control the bulk and scale of a development. In his opinion, the proposal's breach of the FSR and setback controls results in a proposal that is excessively bulky and fails to meet the FSR objectives. 34Mr Layman states that clause 7.1.1(e) of DCP 2009 does not exclude a basement level being defined as a 'storey' and that there is a clear intent in the development controls to limit dwellings to two storeys, with flexibility for sloping sites to allow for a basement level, with a maximum depth of excavation of 1 m. Further submissions 35Further submissions were requested from the parties regarding the findings in Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58 (Iris Diversified). Iris Diversified deals with the question of whether specified provisions in a LEP have force and effect in relation to an application benefiting from existing use rights, this raises the issue of whether an objection under the provisions of State Environmental Planning Policy No 1 - Development Standards (SEPP 1) is required to the FSR development control in LEP 2009. 36Mr Johnson submits that the principles discussed in Iris Diversified have no application because they relate only to an application for a change in use under the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) subclause 41(1)(d) and this application complies with the development standards in LEP 2009. 37Mr Johnson further submits that if the Court determines that a SEPP 1 objection is required, the applicant gives notice that it wishes the opportunity to seek leave to reopen its case for the purpose of tendering a SEPP 1 objection. 38Mr Seton also submits that the principles discussed in Iris Diversified have no application because they relate only to an application for a change in use under the EPA Regulation. Findings 39Development consent for the rebuilding of an existing use is required under clause 44 of the EPA Regulation. 40Section 108(3) of the EPA Act, provides that any provisions of an environmental planning instrument that would derogate or have the effect of derogating from, in this matter, clause 41(1)(c) of the EPA Regulation, for the rebuilding of a dwelling house benefiting from existing use rights, do not apply. The applicant submits that the effect of s 108(3) is to make the development standards and controls irrelevant. 41Iris Diversified addresses the question of whether specified provisions in a LEP have force and effect in relation to an application benefiting from existing use rights. Justice Pain found, at par 52, that provisions that do not derogate from the incorporated provisions do have force and effect. Her Honour relevantly states, at par 38: However, for the reasons articulated in the Council's submissions (summarised in par 20) it is not necessarily the case that development standards in an LEP which constrain a consent authority's discretion to approve a conforming use detract from, lessen the extent of or impair or depreciate the change of use to the existing use permitted. It does not destroy any change of use permitted by cl 41(1)(d). As a matter of ordinary construction, in relation to development that fails to comply with requirements in the LEP so that development cannot be lawfully carried out with or without consent, those requirements do not derogate from cl 41(1)(d). 42The relevant development standards in LEP 2009, which are the controls for height and FSR, do not prevent the rebuilding of a dwelling house and therefore they do not derogate or have the effect of derogating from the operation of the incorporated provisions and consequently they have force and effect. Based on the authority of Iris Diversified, I find that the objectives of the development standards for height and FSR of dwelling houses in LEP 2009 are a relevant to my consideration of the merits of the proposal. 43The objectives of the development control for FSR include, at clause 4.4 of LEP 2009: (1)(a) to ensure that the bulk and scale of development is compatible with the character of the locality. 44I agree with Mr Layman that the proposal will appear as a three and four storey development from Kullah Parade. The amended proposal represents a substantial footprint in proportion to the site area, with little or no private outdoor garden area at ground level. The bulk and scale of the development has not been ameliorated in any way by the design of the three-dimension form, which is unsympathetic and unarticulated. 45Having regard to the relevant development standards and their objectives and the evidence provided, I find that the proposal would have a detrimental impact on the character of the locality.

Is the proposal consistent with the desired and likely future character of the area? Evidence and submissions 46According to Mr Polvere, the Council has focused on the proposal with reference only to the existing and future character of Kullah Parade and the existing development in the vicinity of the site and the future character of Mindarie Street are also relevant considerations. 47Mr Johnson submits that NSW Housing owns the adjoining properties on either side of the site and future proposals for these sites are subject to the provisions of ss 88 and 89 of the EPA Act, regarding Crown developments. These provisions provide that a Crown development application cannot be refused or conditions imposed on the consent by the consent authority, except with the approval of the Minister. In his submission, the future development of the adjoining sites by NSW Housing need not comply with the provisions of DCP 2009 and this should be taken into account in considering the future character of the area. 48Mr Johnson further submits that the reasoning behind the rezoning of the properties on the northern side of Kullah Parade, west of Giraween Avenue, is because they are located within an area identified as being prone to fire and therefore not suitable for residential apartment buildings. 49The experts disagree as to the weight the Court should give the objectives of the E4 Zone under the draft LEP, on the basis of whether the draft LEP is certain and imminent or not. Evidence and submissions were provided by both parties as to the certainty and imminence of the draft LEP; the applicant stating that the draft LEP is not certain as the current exhibition of the Green Paper (A New Planning System for NSW Green Paper July 2012) is evidence of the government's commitment to replace the EPA Act and that draft LEPs may not be made by the time the new legislation is enacted. The Council states that the draft LEP is certain and imminent, as it has been referred to the Department of Planning and Infrastructure with a request that the Minister make the Plan. Findings 50Pursuant to s 79C(1)(a) of the EPA Act, the following must be considered in terms of the proposed amendments to LEP 2010: (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved) 51The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted. Relevantly, Spigelman CJ states, at par 5 of Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289, the following: Mason P outlines the line of authority in the Land and Environment Court to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its "certainty and imminence". I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft. 52On the question of whether the draft LEP is imminent and certain, I accept that the draft LEP is likely to be gazetted as it is well advanced in the plan making process and that it should be given considerable weight. The draft LEP has been advertised, Council staff have assessed the submissions from the advertising, reported to the Council where the report was endorsed by the elected Council and sent to the Department of Planning, prior to referral to the Minister for finalisation. On the question of imminency, the evidence indicates that the council referred the draft LEP to the Department of Planning on 30 April 2012, although no time frame has been provided by the Department of Planning for its finalisation. In my opinion, the issue of imminency is less critical than the issue of certainty in determining the weight that should be attributed to the draft LEP. It would seem that the particular provisions of the draft LEP to rezone the land to E4 have greater bearing on the question of weight than when the draft LEP is finalised, subject of course to the finalisation being within a reasonable timeframe. There was no evidence to suggest that the finalisation of the draft LEP would take an excessively long period of time. 53I therefore give considerable weight in the determination of this appeal to the objectives of the E4 Zone under the draft LEP, which are to provide for low-impact residential development in areas with special ecological, scientific or aesthetic values and to ensure that residential development does not have an adverse effect on those values. 54The development standards for the E4 Zone limit the bulk and scale of dwellings, with a FSR development control of 0.5:1. The amended proposal, according to Council's submission, is more than double the permissible FSR under the draft LEP. 55For reasons discussed elsewhere in the judgment, I am satisfied that the amended proposal represents an over development of the site and that it cannot be considered a 'low-impact residential development'. It would not be in harmony with the future and desired character of Kullah Parade. The proposal would have an adverse impact on the visual catchment of the Stringy Bark Creek Bushland. 56Any suggestion that the Green Paper should be given any weight in the consideration of imminency and certainty is rejected.

Will the proposal represent an unacceptable precedent for development in the area? Evidence 57The Council contends that the proposal will represent an unacceptable precedent for development in Kullah Parade. Findings 58Although precedent can be a valid planning consideration (Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75), I have given no weight to the possibility that this proposal would provide a precedent, should it be approved, on the basis that each development application must be assessed with reference to the relevant development standards and the merits of the application.

Orders 59The orders of the Court are: 1.The appeal is dismissed. 2.Development Application No. 15/2012 to demolish the existing dwelling and construct a new three and four storey dwelling is refused consent. 3.The applicant is to pay those costs of the Council that were thrown away as a result of amending the application, under s 97B, as agreed. 4.The exhibits, other than exhibits A and C, are returned.

Susan O'Neill 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: 10 August 2012

Pei Long Wu v Lane Cove Council

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