Picciau v Georges River Council

The Site

1. The subject site, Lot 694 DP 13496, is located on the eastern side of Caloola Crescent, Beverley Hills. The site's public road frontage is to a small crescent off the main carriageway of Caloola Cresent. The land directly opposite the site is a small crescent shaped pocket park.
2. The frontage of the subject site to Caloola Crescent is 12.19m. The land falls at a gradient of less than 3% towards the rear boundary. The site contains a number of trees and shrubs, including a 14m high Eucalyptus haemastoma in the front setback.
3. The locality contains low-density residential development, characterised by single and two storey detached dwelling houses.

Relevant Planning Controls

1. Hurstville Local Environmental Plan 2012 (LEP 2012) applies to the site. Pursuant to LEP 2012 the site is zoned R2 Low Density Residential. The consent authority must have regard to the objectives of the zone when determining a development application (cl 2.3(2) of LEP 2012). The objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment; • To enable other land uses that provide facilities or services to meet the day to today needs of residents • To encourage development of sites for a range of dwelling types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area. • To ensure that a high level of residential amenity is achieved and maintained. • To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment. • To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity.
2. Attached dual occupancies are permissible with consent in the zone.
3. The applicable minimum lot size for dual occupancy development on the subject site is 630m² (cl 4.1A LEP 2012). The subject site is compliant with this control as it has a site area of 841m².
4. Pursuant to cl 4.3 of LEP 2012 the maximum building height for the site is 9m. The proposed development has a maximum building height of 7.45m which is compliant with the standard.
5. Pursuant to cl 4.4 of LEP 2012 the subject site has a maximum floor space ratio (FSR) of 0.6:1. The amended plans demonstrate that the proposed development has a gross floor area of 415m2, generating an FSR of 0.493: 1, which is compliant with the standard.
6. The relevant development control plan is the Hurstville Development Control Plan, Number 1 amendment 7 (DCP 1). The aims of DCP 1 are: "The aim of this DCP is to encourage and co-ordinate the orderly and economic use and development of land to cater for a variety of residential, retail, commercial and service needs of the community while protecting and enhancing amenity, cultural heritage and ecological sustainability. …" (Ex 1)
7. The DCP has a series of performance criteria and design solutions for various parameters of development. These terms are defined separately to 'objectives' and 'controls'. The definitions are provided at Section 1.11 of the DCP as follows: "1.11 Compliance with this Plan ... Objectives: For each Section or topic of relevance, objectives will clearly state what Council seeks to achieve once the Controls or the Performance Criteria are met. Controls: Are specific, prescriptive measures required for achieving the desired objectives. Performance Criteria: Identify how a development should perform so that the desired outcomes can be achieved. Design Solutions: Indicate how the development can achieve the desired performance and objectives. ..."
8. Chapter 4.3 of DCP 1 contains controls specific to Dual Occupancy development. At 4.3.2 DCP 1 states that 'the purpose of the chapter is to achieve the following objectives'. Those objectives are: "• to ensure that development is of a scale that is compatible with low density, suburban environments. • to ensure consistency with the desired future character of the area. • to protect the natural scenic landscape qualities of sensitive areas such as the Georges River foreshore. • to contribute to the creation of attractive, human scale streetscapes. • to create a high amenity living environment and to maintain existing residential amenity for adjoining or nearby residential development. • to create a high amenity living environment. • to achieve a high level of environmental performance. • to promote housing affordability and provide housing choice."
9. The remaining provisions of the Chapter relevant to the appeal are: 1. Performance Criteria 1 (PC1): the site frontage is adequate to enable development that incorporates adequate setbacks, efficient carparking and vehicle access and circulation and quality built form. 2. Design solution (DS1.2): "Minimum Site width is: a. 15m for an attached dual occupancy …. Note: Council may allow a reduction in this site width where the site meets the width requirement at the 5.5m front building setback and for the length of the building."

Public Submissions:

1. In accordance with the provisions of DCP1 the development application was notified by the Council in March 2018. Four objections were received from adjoining owners. These objections were tendered in the proceedings in Exhibit 1. I have read and considered these submissions.
2. At the commencement of the proceedings on site evidence was heard from a number of objectors to the application. The issues raised by these objections can be summarised as follows:- 1. the proposed development will impact on the privacy of the rear yards of the adjoining properties. 2. the siting of the proposed development will allow for overlooking into the proposed pool and outdoor living areas on the subject site. 3. the construction of the dual occupancies will impact on existing trees on adjoining properties, in particular: a Eucalytptus tereticornis at 46 Caloola Avenue and a Mango tree at 42 Caloola Avenue. 4. the proximity of the proposed pool for dwelling one will produce noise and privacy impacts for 42 Caloola Avenue, with limited space on the subject site to provide screening or landscaping to ameliorate the impacts. 5. concern that the additional development proposed will impact on the capacity of the existing stormwater infrastructure in Caloola Avenue and has the potential to generate overland flow and impact on the downstream properties. 6. that there is potential for the rear yard of the subject site to contain remnant building materials, including potentially hazardous materials, from previous building works.

Expert Evidence

1. The Court was assisted by expert arboricultural evidence from Dr William Hone, called by the Applicants and Mr Jason Dagleish called by the Council. In their joint report the experts agree that the following trees, nominated on the architectural plans, should be retained and protected: "• T2 - Eucalyptus racemosa - haemastoma intergrade (Scribbly Gum) • T3 - Jacaranda mimosifolia (Jacaranda) • T10 - Eucalyptus tereticornis (Forest Red Gum) • T11 - Brachychiton acerifolius (Illawarra Flame Tree) • T12 - Eucalyptus tereticornis (Forest Red Gum) • T13 - Macadamia integrifolia (Macadamia) • Melaleucas and Mango on adjoining property" (Ex K)
2. The amended plans accommodate the required tree protection zones for the above trees. Council accepts that the contentions in relation to tree impact and removal are resolved by these amended plans.
3. Expert town planning evidence was provided by Mr Michael Neustein for the Applicant and Ms Heather Warton for the Council. Their joint report includes the following agreed statement: "The experts agree, that notwithstanding that the site does not have the minimum frontage width required by the DCP, the amended drawings dated 11/2/2019 indicate that the development is able to now be accommodated on the site." (Ex J)
4. Further in relation to the variation to the site width criteria the planning experts agree that: "In urban design terms, the site width of 14m to the front wall of the proposal, as now amended aligns approximately with the dwelling to both sides and is sufficiently consistent with Council controls PC1 and DS1.2 to be considered effectively compliant." (Ex J)
5. As a result of the changes to the development, incorporated in the amended plans, the experts are agreed that the development is satisfactory and in their opinion no issues remain that warrant refusal of the application.
6. Notwithstanding the evidence of the planning experts, Council maintains the lot width control should not be varied and the application should be refused.

Submissions

1. Ms Berry submits that Council's development controls for lot frontage width for dual occupancy development in DCP 1 (cl 4.3.3, DS 1.2) should not be varied and that the application should be refused by the Court.
2. It is Ms Berry's submission that the predominant character of the locality is of single detached dwellings. She argues that a variation to the lot frontage width control will allow for attached dual occupancy development to occur on areas where the desired future character is for single dwellings.
3. Further Ms Berry argues that the alternative lot width proposed by the application does not meet the objectives of the performance criteria at 4.3.2 of DCP 1 (refer par [16]). In particular she argues the variation is inconsistent with the objectives: to ensure development is of a scale that is compatible with low density, suburban environments and to ensure consistency with the desired future character of the area. Given that the variation sought does not meet these objectives, Ms Berry argues the variation to lot width should not be granted.
4. Ms Berry notes that by reference to Exhibit 4 the following adjoining properties have a similar lot width and size to the subject property. She argues that if the lot width frontage control is varied by the Court for the subject site, these properties will also seek to redevelop to dual occupancy forms of development.

• 40 Caloola Crescent: frontage 14.05m
• 42 Caloola Crescent: frontage 12.19m
• (44 Caloola - subject site)
• 46 Caloola Crescent: frontage 12.19m

1. Further Ms Berry notes that Mr Neustein acknowledges the likelihood of the adjoining properties being redeveloped in the near future in the joint report due to their age and being of a gross floor area well below that currently permitted (Ex J).
2. Given the preceeding Ms Berry argues that it is appropriate for the Court to consider the precedent impact of approving the proposed development of the subject site for dual occupancy development on other proximate narrow sites.
3. Ms Berry relies on the decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 (Goldin) to establish that precedent is a matter for consideration for the Court. Consistent with the decision in Goldin, she argues that the development itself is objectionable and there is sufficient probability that there will be further like applications.
4. In the alternative Mr Eastman argues the Court should accept the agreed evidence of the experts that the development warrants approval. He emphasises that the experts are agreed that no unreasonable amenity impacts arise either from the variation or from the development.
5. Mr Eastman argues that it is appropriate for the Court to vary the lot width as: 1. firstly s 4.15(3A)(b) of the EPA Act mandates flexibility in the application of development controls where the intent of the control is met, and 2. secondly the planning principle in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [87] states: "A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied."
6. It is Mr Eastman's submission that the relevant 'objects of the standard' for the lot width control (cl 4.3.3, DS 1.2) are provided at PC1, namely: Site area and frontage is adequate to enable development that incorporates adequate setbacks, efficient car parking and vehicle access and circulation and high quality built form.
7. Mr Eastman argues that this performance criteria is met by the proposed development in the following manner:

• the site area of the subject site is 841m², well compliant with the minimum site area of 600m² at cl 4.1B of LEP 2012;
• the proposed development provides rear, side and front setbacks which exceed the minimum required by DCP 1, and allow for landscaping and the avoidance of impact on existing neighbouring trees;
• the proposed front setback facilitates the retention of existing trees in the front of the site;
• the carpark design is efficient and allows for vehicle access and circulation;
• the application provides screening and architectural treatment which allows the development to read in the streetscape as a single dwelling;
• the internal design of the dwellings and their amenity is not compromised by the reduced site width.

1. Mr Eastman notes that there is no expert evidence before the Court that these elements of the performance criteria are not met by the proposed development.
2. Finally Mr Eastman argues that to the extent that precedent is a matter for consideration, Goldin can be applied in the positive as the development presents attractively to the street, complies with the relevant setback controls notwithstanding the variation to the width, and has no amenity impacts.
3. Mr Eastman notes that the Statement of Environmental Effects (Ex A) documents a number of other development sites where a variation to the lot width has been granted by the Council. He submits that this inconsistent application of the lot width control at cl 4.3.3, DS 1.2 of DCP 1 should be given consideration by the Court in determining the application.

Consideration

1. The EPA Act at s 4.15(3A) states: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.
2. The provisions of s 4.15(3A)(b) mandate a flexible approach to the application of the lot width performance criteria. As noted by Moore, SC in Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151 at [68] s 79C(3A)(b) of the EPA Act (as it was then) requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards.
3. Having regard to the evidence and the submissions of the parties I am satisfied that it is appropriate to be flexible in applying the lot width provision of DCP 1 for the subject development. I accept the agreed evidence of the planning experts that the development is consistent with Council controls PC1 and DS1.2 and I am satisfied that the proposed development is a reasonable alternative solution that warrants approval.
4. Further I am satisfied that the concerns raised by the residents have been satisfactorily addressed. This has been facilitated both by the applicant making amendments to the proposed development and through the imposition of conditions on the consent. In particular I note the conditions require substantial additional screen planting to ameliorate any amenity impacts arising from the development for the adjoining neighbours.
5. Further the conditions, in the form of a deferred commencement condition, require the applicant to either acquire an Easement to Drain Water through an adjoining property to the rear of the site or to obtain consent to complete works to upgrade the existing stormwater infrastructure in the road reserve and the frontage of the property.
6. The Council relies on Goldin. In this decision, Lloyd J refers to the concept of a consent operating as a precedent and says (at [28]): "…if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration."
7. I am not persuaded by the Council's position. In this case I am satisfied that the fact that an approval might form a precedent is not sufficient, of itself, to warrant refusal. Consistent with Goldin I find that, to warrant refusal, the precedent generated must be undesirable in some way. On the agreed evidence of the planners I am not satisfied that the variation to the lot width performance criteria is undesirable.
8. I find that the present application does not create an undesirable precedent for the following reasons: 1. I am satisfied that there is nothing about the application, or its impacts, that makes it objectionable of itself, and it therefore cannot be described as creating an "undesirable" precedent. 2. Whilst there is a probability of further application of a like kind I am satisfied that DCP 1 envisages DS1.2: Site Width will be applied flexibly, both through the inclusion of the 'note' (refer par [17]), and as a result of s 4.15(3A)(b) of the EPA Act. 3. Finally, as detailed in the Statement of Environmental Effects supporting the application (Ex A) there are already approvals for attached dual occupancies that vary the lot width performance criteria in the locality. Therefore, any precedential effect of an approved variation is likely established by those approvals.
9. Further I am satisfied that the objectives of the R2 zone (refer par [9]) overtly encourage the development of sites for a range of dwelling types, which in conjunction with the range of permissible uses, will inform the desired future character of the locality. I am not persuaded by the submissions of Ms Berry that the proposed development will be inconsistent, or incompatible with, the existing character or the desired future character.
10. Based on the agreed expert evidence before me, I am satisfied that the amended proposal is consistent with the objectives of the R2 Low Density Residential zone, in particular the objective to encourage development of sites for a range of dwelling types, in a manner that does not have unreasonable adverse impacts on the amenity of the adjoining properties. As required by s 4.15 of the EPA Act, I have considered all of the evidence against the statutory framework including the objectors' oral and written concerns. As indicated I am satisfied that any relevant contentions have been satisfactorily addressed in the amended design and the conditions of consent.

Orders

1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. No order as to costs; 3. The appeal is upheld; 4. Consent is granted to Development Application No. No 2018/0081 for demolition of the existing dwelling and outbuildings and the construction of a new two storey dual occupancy development at 44 Caloola Crescent, Beverley Hills, Lot 694 DP 13496, subject to conditions in Annexure A; 5. The exhibits are returned with the exception of Exhibit 2, A, C, E, G and L. ……………. D M Dickson Commissioner of the Court Annexure A (458 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2019