The applicant's position in support of the request
Mr Petrovic submits that, given that the built form and a strata subdivision has already been approved, the Torrens title subdivision will not have any impact on the neighbouring properties. He submits that any potential adverse effects of future applications, occasioned by the increased FSR entitlement, must be assessed as part of the merits of the future application, and is not a relevant matter for the consideration of the present application.
In this context, Mr Petrovic submits that the proposed development is consistent with the objectives of the development standard, as there are no impacts occasioned by the subdivision, and the resulting lot sizes will accommodate the approved dwellings despite the non-compliance. Mr Petrovic submits that whether the building is defined as a dual occupancy (attached) or two semi-detached dwellings is an outcome of no consequence, given that both types of development are permissible and both will have the same environmental outcomes.
Further, Mr Petrovic points out that establishing that the development does not cause any environmental harm is an established means of demonstrating that compliance with the development standard is unreasonable or unnecessary, relying on the decision in Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94.
For the above reasons, Mr Petrovic's position is that the request adequately addresses why compliance with the development standard is unreasonable and unnecessary.
Mr Petrovic also submits that each of the seven grounds advanced by the request as justifying the breach of the development standard constitute environmental planning grounds, as each relates to the subject matter and purpose of the EPA Act. Mr Petrovic submits that the contravention to be justified is modest, which ought to be borne in mind. Further, Mr Petrovic submits that the draft Housing Strategy reflects the desired future character of the area and is therefore clearly relevant in determining whether the departure is justified.
Petrovic v Randwick City Council [2021] NSWLEC 1242 | Case summary | Zoe
Finally, Mr Petrovic relies on the evidence of Mr Chapman and the matters addressed by the request to establish that the proposed development is consistent with the objectives of the zone. The evidence of Mr Chapman is primarily that there is no change to the streetscape, density and built form brought about the proposed development, that the resulting lots sizes are consistent with the intention to reduce minimum lot sizes to 275m2 in the Comprehensive Planning Proposal, and that the availability of land in a Torrens title subdivision will increase the supply for housing and housing choice.
[2]
The request does not establish sufficient environmental planning grounds
I am not satisfied that the written request adequately addresses that there are sufficient environmental planning grounds to justify contravening the development standard for the minimum subdivision lot size. As set out in the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [23]-[24], the grounds advanced must "environmental planning grounds" by their nature, and must be "sufficient" both in justifying the contravention of the standard and in enabling the consent authority to be satisfied under cl 4.6(4)(a)(i).
In describing the requirement to "justify contravening the development standard", Preston CJ states that "The focus of cl 4.3(3)(b) is on the aspect or element of the development that contravenes the development standard", and "The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole" (at [24]). Put simply, any stated benefits that constitute environmental planning grounds must be able to justify the contravention and they must be "sufficient" to do so.
The first two grounds advanced in the request as justifying the contravention of the development standard are a description of the proposed development and its outcome. Neither of those grounds are "environmental planning grounds" by their nature. There is nothing about the descriptions contained therein that specifically seeks to advance any environmental or planning benefit or address any environmental or planning issue that falls within the aims of the EPA Act. Further, even if they could be described as environmental planning grounds, which I do not accept, there is nothing in their description that tethers these outcomes to the contravention of the minimum subdivision lot size development standard so as to justify that contravention.
A submission was made on behalf of Mr Petrovic that these first two grounds demonstrate that the proposed development does not create any impact, which he says is an environmental planning ground. The absence or avoidance of impacts could constitute an environmental planning ground, as it promotes good design and amenity in accordance with the objects of the EPA Act. However, the lack of amenity impacts in the proposed development is a product of the nature of the application for subdivision, and does not actually justify or arise from the lots being smaller than the minimum subdivision lot size.
The third ground advanced is that the proposed allotments are similar to the subdivided lots at 1245 Anzac Parade. Whilst this is true, of itself it does not constitute an environmental planning ground that informs or justifies the departure from the minimum subdivision lot size. This is distinct from findings in cases such as Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712 and SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112, where the contravention of the development standard was justified to achieve consistency in the streetscape with other sites that breached the relevant development standards. In the present appeal and in the written request before the Court, the departure from the development standard is not justified by such an outcome.
The fourth ground advanced as an environmental planning ground is that the subject site is identified as an area for housing growth in the draft Housing Strategy and that the Torrens title subdivision and proposed lot size is consistent with the Council's strategic intentions and with the minimum subdivision lot size in the Comprehensive Planning Proposal. I accept that such a ground is an environmental planning ground by its nature, as it relies on the strategic planning direction of the Council and it advances the aim of the EPA Act for orderly and economic use and development of land. Further, this ground is directly linked to, and informs, the contravention of the development standard. However, there is insufficient certainty around the Comprehensive Planning Proposal, which is the means by which the draft Housing Strategy and reduction in minimum subdivision lot size is sought to be implemented, for this ground to be sufficient to justify the contravention of the minimum subdivision lot size development standard in the proposed development. In that regard, I accept the submission of the Council that limited weight can be placed on the draft planning proposal in circumstances where it has not been approved by the Council, has not been the subject of community consultation, and has not been approved by the NSW Government as part of a Gateway determination. As such, this ground is not sufficient to justify the contravention that is sought in the proposed development.
I note that, with respect to this fourth environmental planning ground, the present facts are distinguishable from the facts before the Court in Eather v Randwick City Council. In Eather v Randwick City Council, the contravention of the development standard was minor, amounting to lot sizes that were 7.1m2 and 26.3m2 smaller than the minimum subdivision lot size. Commissioner Walsh made it clear (at [38]-[39]) that the "particularly small departure from the actual numerical standard and lack of any material impacts" are sufficient environmental planning grounds, and the Local Strategic Planning Statement and the draft Housing Strategy, "which suggest changes to minimum lot sizes" is a further environmental planning ground justifying the contravention. These reasons should be read together. By contrast, in these proceedings, the contravention cannot be described as "particularly small", being up to 68.1m2 smaller than the minimum subdivision lot size, more than double the largest contravention considered by Commissioner Walsh. In the present proceedings, I do not consider that the strategic direction of the Council toward smaller minimum subdivision lot sizes is sufficient to justify a contravention of the extent sought in the present proceedings, particularly given that there is no certainty on what the change to the minimum lot sizes will be and whether it will be changed at all, in circumstances where the Comprehensive Planning Proposal has not yet been approved by the Council, publicly notified, or the subject of a Gateway Determination.
The fifth ground proffered as an environmental planning ground states that the development is consistent with the Metropolis of Three Cities - Eastern City District Plan by contributing to housing supply and affordability "by providing dwellings in separate ownership", and provides "housing choice on a main transport route". In fact, these benefits are already achieved from the approved strata subdivision of the dual occupancy. The strata subdivision will allow for separate ownership of the dwellings, and both Mr Chapman and Mr Faridy agree that the strata lot is likely to cost less to a purchaser than a Torrens title allotment. The variation to the minimum subdivision lot size development standard is therefore not integral to achieving these stated benefits, as they can be achieved with other compliant forms of subdivision. In any event, these benefits would be true of any subdivision application and I do not accept that they are sufficient to justify the contravention of the minimum lot size development standard.
The sixth and seventh grounds seek to outline how the allotments will meet the objects of the EPA Act and the aims of the RLEP 2012. In doing so, it describes the proposed development and its outcomes, and states that "the site has sufficient area to accommodate the development" (p 6) and that the subdivision does not generate additional dwelling entitlements (p 7). However, none of these matters are directed to the actual contravention of the minimum subdivision lot size development standard so as to justify, or inform, that contravention.
As such, none of the matters advanced as environmental planning grounds, either alone or taken together, are sufficient to justify the contravention of the development standard. I am therefore not able to be satisfied under cl 4.6(4)(a)(i) that the request adequately addresses "that there are sufficient environmental planning grounds to justify contravening the development standard" (cl 4.6(3)(b)), and the development application must be refused on that basis.
Whilst the Council also contended that the Court ought not be satisfied of the other matters in cl 4.6(4)(a), there is no utility in considering each of the other matters in circumstances where I am not satisfied that the request adequately addresses the matters required to be demonstrated by cl 4.6(3).
[3]
Outcome of the appeal
Having not reached the state of satisfaction required by cl 4.6(4)(a)(i), cl 4.6(4) of the RLEP 2012 makes it clear that development consent must not be granted for the proposed development. Accordingly, there is no power to grant development consent and the development application must be refused.
The Court orders that:
1. The appeal is dismissed.
2. The development application for the Torrens title subdivision of the land at 1249 Anzac Parade, Chifley is refused.
3. The exhibits are returned, except for Exhibit A.
[4]
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: 12 May 2021
Parties
Applicant/Plaintiff:
Petrovic
Respondent/Defendant:
Randwick City Council
Cases Cited (10)
Judgment
COMMISSIONER: On 15 October 2019, in a decision of the Court in Kingsford Property Developments v Randwick City Council [2019] NSWLEC 1486, development consent was granted for the construction and strata subdivision of a dual occupancy at 1249 Anzac Parade, Chifley. Development has not yet been carried out in accordance with the development consent, and a single dwelling remains on the site. A development application was subsequently lodged with Randwick City Council (the Council) on 23 December 2019, which sought a Torrens title subdivision of the lot, with the proposed boundary of the two subdivided lots to run along the common wall of the dual occupancy. The development application was refused by the Council on 9 April 2020. These proceedings are an appeal by Mr Alexander Petrovic against that decision, which is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 3 May 2021. The parties did not reach an agreement and the appeal proceeded to a hearing forthwith pursuant to s 34AA(2)(b)(i).
The proposed development would result in two lots that are less than the minimum subdivision lot size under the Randwick Local Environmental Plan 2012 (RLEP 2012), which is 400m2. Proposed Lot 1 would be 331.9m2 with a front boundary of 8.55m to Anzac Parade, and proposed Lot 2 would be 337.1m2 with a front boundary of 8.67m. The Council opposes the grant of development consent on the basis that the lot sizes are less than the minimum subdivision lot size development standard, and that the request lodged concerning the development standard is inadequate. Further, the Council says that the proposed development is not consistent with the objectives of the zone or of the development standard, and that it is inconsistent with the requirements of the Randwick Development Control Plan 2013 (RDCP 2013) concerning lot frontage width.
I have determined below that the written request provided in support of the proposed development does not establish sufficient environmental planning grounds to justify contravening the development standard for the minimum subdivision lot size. Accordingly, there is no power to grant development consent and the application must be refused.
The breach of the minimum subdivision lot size development standard
At set out above, the proposed development breaches the minimum subdivision lot size development standard, with proposed lot sizes of 331.9m2 and 337.1m2. Proposed Lot 1 is therefore 68.1m2 smaller than the lot size required, and proposed Lot 2 is 62.9m2 smaller than what is required. As such, consent cannot be granted except in accordance with cl 4.6(2) of the RLEP 2012. Clause 4.6 provides, at (3) and (4):
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:
(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.
(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.
In considering whether the state of satisfaction required by cl 4.6(4)(a) has been met, I summarised the relevant principles in Abrams v Council of the City of Sydney [2019] NSWLEC 1583 as follows:
"32 Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action"), for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:
• The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)),
• The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)),
• The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and
• The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).
33 Consistent with the decision of the Court of Appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, the Court, in exercising the functions of the consent authority, must "in fact" be satisfied of the above matters. The state of satisfaction that compliance is "unreasonable or unnecessary" and that there are "sufficient environmental planning grounds" to justify the contravention (the first two dot points above) must be reached only by reference to the cl 4.6 request. Whilst the evidence in the proceedings can assist in understanding the request and in considering the adequacy of the request, it cannot supplement what is in the request. On the other hand, the state of satisfaction that the proposed development is in the public interest (the last two dot points above) can be reached by considering the evidence before the Court, without being limited to what is contained in the cl 4.6 request."
The written request
The written request is dated 20 April 2021, and is clearly divided into headings that reflect the requirements of cl 4.6(4).
The written request seeks to establish that compliance with the development standard is unreasonable or unnecessary on the basis that the objectives of the standard are met notwithstanding the non-compliance. This is consistent with the first of the five ways in which this can be established, as set out in Wehbe v Pittwater Council (2007) 156 LRERA 446; [2007] NSWLEC 827.
The written request also advances seven grounds which it says are environmental planning grounds that justify the contravention of the minimum subdivision lot size development standard. They can be summarised as follows:
The Torrens title subdivision is drawn to the party wall of the approved dual occupancy, and simply changes the title of the subdivision.
The proposed development does not change the approved built form.
The proposed lots are similar to the approved subdivision at 1245 Anzac Parade, which has lot sizes of 381.6m2 and 385.4m2.
The proposed lot sizes are consistent with the Housing Strategy, which identifies the area as being appropriate for a reduction in the minimum subdivision lot size to 325m2, which was further recommended by the Randwick Local Planning Panel to be reduced to 275m2. A draft Comprehensive Planning Proposal incorporating this change is intended to be reported to a meeting of the Council in May 2021.
The proposed development contributes to housing supply and affordability by providing dwellings in separate ownership, and provides housing choice on a main transport route.
The proposed development meets the relevant objects of the EPA Act.
The proposed development meets the relevant aims of the RLEP 2012.
The request also outlines how the proposed development is consistent with the objectives of the development standard and of the zone. In doing so, the request chiefly relies on the following:
There is no change to the streetscape, built form or residential density, and therefore no amenity impacts.
The Torrens title subdivision contributes to housing affordability by contributing to housing supply.
The proposed development contributes to the desired future character, which is for a minimum allotment size of 275m2 in accordance with the Comprehensive Planning Proposal.
The Council's position in response to the request
The Council contends that the matters in cl 4.6(4) are not satisfied as the proposed development is not consistent with the objectives of the zone or of the development standard, the request does not adequately address why compliance is unreasonable or unnecessary, and the request does not raise sufficient environmental planning grounds to justify the contravention of the standard.
The Council's position is that the proposed development is incompatible with the objectives of the zone, including by not providing for "the housing needs of the community within a low density residential environment", and not recognising "the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area". It submits that the consequence of the proposed development is that it will create two semi-detached dwellings, which will each have the opportunity to take advantage of the FSR entitlement of 0.75:1 that applies to semi-detached dwellings in the R2 zone, but that does not apply to dual occupancy (attached) developments (which is subject to a FSR of 0.5:1). The evidence of Mr Faridy is that this will increase the density of the area, as it will result in smaller allotments that have the benefit of additional FSR entitlements, contrary to the character of the low density residential zone. Further, the Council submits that this creates a potential impact on the existing streetscape and a potential impact on the amenity of residents of the area, contrary to the objectives of the zone. In addition, the Council relies on the evidence of both Mr Faridy and Mr Chapman that a semi-detached dwelling is a greater cost to a purchaser than a strata title to a dwelling in a dual occupancy, and therefore submits that the proposed development is not consistent with the objective of the zone to "encourage housing affordability".
In relation to the objectives of the development standard, the Council submits that the future impacts occasioned by the potential increase in density are contrary to each of the objectives.
The Council submits that, in dealing with whether compliance with the development standard is unreasonable or unnecessary, the request is inadequate as it fails to acknowledge the potential increase in FSR that results from the Torrens title subdivision, fails to acknowledge that the change in subdivision pattern where the subdivision pattern is relatively uniform, and fails to address the non-compliance with the minimum lot frontage width control in the RDCP 2013.
Further, the Council submits that the grounds advanced in the written request as environmental planning grounds are either not environmental planning grounds, or are not sufficient to justify a contravention of the development standard. In relation to the draft Housing Strategy, the Council submits that limited weight can be placed on the draft planning proposal in circumstances where it has not been approved by the Council, has not been the subject of community consultation, and has not been approved by the NSW Government as part of a Gateway determination. As such, the Council submits that a consistency with a draft planning proposal of that uncertainty cannot amount to a "sufficient environmental planning ground" justifying the contravention of the development standard.
A further precondition in cl 4.6(4) is the requirement for the concurrence of the Secretary. Although concurrence can be assumed for certain development, s 39(6) of the LEC Act also gives the Court the power to grant development consent without obtaining the concurrence of the Secretary.
The objectives of the minimum subdivision lot size development standard are as follows (cl 4.1(1) of the RLEP 2012):
(a) to minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties,
(b) to ensure that lot sizes allow development to be sited to protect natural or cultural features, including heritage items, and to retain special features such as trees and views,
(c) to ensure that lot sizes are able to accommodate development that is suitable for its purpose.
Finally, the Council submits that whilst a contravention of the minimum subdivision lot size development standard was permitted by the Court in the Torrens title subdivision of land in Chifley in Eather v Randwick City Council [2021] NSWLEC 1075, the contravention in those proceedings was described as being "particularly small departures" and "very low in relative terms", which is distinct from the contravention in the present proceedings, which is between 15.7 and 17%.