COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application n No. DA/1100/2023 seeks consent for Torrens title subdivision of the existing attached dual occupancy (the Proposed Development) at 1304 Bunnerong Road, Phillip Bay legally described as Lot 38 in DP 1266078 (the Site).
The Site is generally rectangular in shape, with a 14.02m frontage to Bunnerong Road (to east) and site area of 542.9m2. The Site is currently occupied by a two storey dual occupancy (attached) constructed pursuant to Development Consent No. DA/852/2018, which was approved by the Respondent on 05 July 2019. The Court was provided with a copy of the Occupation Certificate dated 27 January 2022 (Ex E) as further evidence that the existing dual occupancy (attached) was constructed pursuant to development consent No. DA/852/2018 (Ex 2, Tabs 2 and 3) and as modified DA/852/2018/A (Ex 2, Tabs 5 and 6.)
The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site on 23 July 2024. I presided over the conciliation conference and as the parties were unable to reach agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, the conciliation conference was terminated with the hearing commencing forthwith in accordance with s 34AA(2)(b) of the LEC Act.
At the commencement of the hearing the Applicant made an application pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) to amend the Proposed Development. The Respondent did not oppose the amendment but sought that the Court exercise its functions pursuant to s 39(2) of the LEC Act.
The Applicant's amendment seeks to substitute the Subdivision Plan (Torrens title) prepared by Michael J Burg dated July 2023 and the Statement of Environmental Effects dated July 2023 filed with the Class 1 Application on 13 March 2024 with a draft Plan of Subdivision (SP) prepared by Michael J Borg, filed in Court on 23 July 2024 together with a Statement of Environmental Effects dated July 2024.
The Court, pursuant to s 39(2) of the LEC Act, exercises the discretion of the Respondent council as the relevant consent authority, pursuant to s 38(1) of the EPA Regulation 2021, and approves the application made by the Applicant in Court on 23 July 2024 to amend to development application DA/1100/2023 to rely on the documents and plans specified as follows:
1. Draft Plan of Subdivision (Strata Plan) comprising 3 sheets prepared by Michael Burg filed in Court on 23 July 2024 (Ex C); and
2. Statement of Environmental Effects dated July 2024 (Ex D)
Accordingly, development consent is sought, pursuant to cl 2.6 of the Randwick Local Environmental Plan 2012 (RLEP), for strata title subdivision in accordance with the Strata Schemes Development Act 2015 (SSDA) in accordance with the Draft Plan of Subdivision (Strata Plan) comprising 3 sheets prepared by Michael Burg filed in Court on 23 July 2024 (Ex C).
The Respondent's position, expressed to the Court, is that it neither opposes nor consents to the granting of consent to the Proposed Development and tendered to the Court Draft/Proposed Conditions of Consent in the event the appeal were upheld. The Respondent submits that it respects the previous decisions of the Court to determine the appeal in accordance with its interpretation of cl 4.1A of the RLEP which provides as follows:
4.1A Minimum subdivision lot size for strata plan schemes in Zone R2
(1) The objective of this clause is to ensure that land to which this clause applies is not fragmented by subdivisions that would create additional dwelling entitlements.
(2) This clause applies to land in Zone R2 Low Density Residential.
(3) The size of any lot resulting from a subdivision of land to which this clause applies for a strata plan scheme (other than any lot comprising common property within the meaning of the Strata Schemes (Freehold Development) Act 1973 or Strata Schemes (Leasehold Development) Act 1986) is not to be less than the minimum size shown on the Lot Size Map in relation to that land.
Note -
Part 6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 provides that strata subdivision of a building in certain circumstances is specified complying development.
(4) Despite subclause (3), if the subdivision is of a lot on which there is a dual occupancy (attached) -
(a) the size of each lot resulting from the subdivision must not be less than 275m2, and
(b) 1 dwelling must be situated on each lot resulting from the subdivision.
Clause 4.1A(3) refers to Strata Schemes (Freehold Development) Act 1973 and to Strata Schemes (Leasehold Development) Act 1973 both of which are no longer current, however, references to predecessor legislation can (by s 68 of the Interpretation Act 1987) be taken to be references to the current legislation namely, the SSDA.
The parties refer the Court to the following previous decisions that relevantly deal with the interpretation of cl 4.1A of the RLEP and the calculation of the size of a lot resulting from the subdivision pursuant to the strata plan scheme:
1. Barhom v Randwick City Council [2024] NSWLEC 1357 (Barhom);
2. Albert Square NSW Pty Ltd v Randwick City Council [2021] NSWLEC 1401 (Albert Square);
3. Kelly v Randwick City Council [2018] NSWLEC 1322;
4. Kingsford Property Developments v Randwick City Council [2019] NSWLEC 1486; and
5. MMP 888 Pty Ltd v Randwick City Council [2019] NSWLEC 1646.
The Respondent also concedes that the contentions particularised in the Statement of Facts and Contentions (Ex 1) are not relevant to the Proposed Development and does not rely on them. In effect, the Respondent does not present a case in opposition to upholding the appeal.
The Applicant's case is that the Proposed Development is wholly compliant with all relevant development standards and controls, except for frontage width Part C1 of the Randwick Development Control Plan (RDCP) which I will come back to at [17], and, that as there is no change to the built form as approved (Ex 2, Tabs 2, 3, 5 and 6, and Ex E) the appeal should be upheld and consent granted.
I now set out my findings as to the merits and jurisdictional prerequisites which lead me to conclude that development consent should be granted to the strata subdivision as sought by the Applicant.
The Site is within Zone R2 Low Density Residential under the provisions of RLEP and the Proposed Development remains consistent with the objectives of the zone and I accept the evidence of Mr Betros in the SEE (Ex D) that the proposed subdivision "complies with the relevant objectives and provisions" of the RLEP and RDCP, and "is compatible with the existing and anticipated future character of the locality where there is a range of residential development, including dual occupancies which encompass subdivision of lots whilst being indiscernible from the existing subdivision plan." (SEE, p 15) I am equally satisfied that the "proposed strata subdivision will not generate in a fragmentation of land or any additional dwelling entitlements. The size of each lot resulting from the subdivision will not be less than 275m2 and will be occupied by 1 dwelling. Therefore, complying with the RLEP controls for zoning and minimum lot size." (SEE, p 15)
In Barhom, Gray C at [44] referred to the earlier decision of Albert Square and concludes as follows:
"The decision of the Court in Albert Square clearly considers the earlier competing decisions and determines the correct approach to the interpretation of cl 4.1A. Having done so, as a matter of comity it is a decision that I should follow unless it is plainly wrong. For the reasons set out above at [23]-[34], I reach the same conclusion as that which was reached in Albert Square and there is no basis upon which I could conclude it to be wrong."
In accordance with my conclusions in Albert Square, I find that the Proposed Development complies with the 275m2 minimum lot size development standard provided in cl 4.1A of the RLEP. The size of each of the proposed strata lots is determined by the sum of the floor areas depicted in the floor plan for each lot, which is calculated from the areas occupied by the horizontal plane of each cubic space that forms the lot. Proposed strata lot 1 (referred to as dwelling No 1304 or Northern Dwelling) will be 464m2 and proposed strata lot 2 (referred to as dwelling No 1304A or Southern Dwelling) will be 450m2. The SEE helpfully provides as follows:
"The proposed Strata Subdivision will compose of the following:
• Dwelling No.1304 (Northern Dwelling)
Basement Pt 107m2
Ground Floor Pt 266m2
First Floor Pt 91m2
Total 464m2
• Dwelling No.1304A (Southern Dwelling)
Basement Pt 107m2
Ground Floor Pt 252m2
First Floor Pt 91m2
Total 450m2
1.
2. "
I come back now to deal with the frontage width control of 15m in Section C1 of the RDCP. The Respondent included in the Bundle of Documents (Ex 2) the Assessment Report prepared by the Respondent in relation to DA/852/2018, resulting in the consent for the existing dual occupancy (attached) (Tab 1). At page 8 of the Assessment Report, there is a table addressing the relevant provisions of Section C1 of the RDCP and in relation to the 15m minimum frontage control the table states that the proposal is compliant with the following comment:
"Existing = 14.02m. There are no objections to the non compliance as the land sizer (sic) and development still respects the predominant subdivision pattern of the locality and will still allow for an adequate width to accommodate the development without any adverse impact to the amenity of the adjoining properties and streetscape."
I conclude that the appeal is to be upheld and the development application for strata subdivision be determined by the granting of consent subject to conditions as agreed between the parties and filed with the Court (Ex 3)
[2]
Orders:
The Court orders:
1. The appeal is upheld.
2. Development application No DA/1100/2023 for Strata subdivision of existing dual occupancy to create two (2) new lots at 1304 Bunnerong Road, Phillip Bay is determined by the grant of consent subject to the conditions of consent in Annexure A.
3. All Exhibits are retained.
[3]
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: 31 July 2024
[4]
4.1A Minimum subdivision lot size for strata plan schemes in Zone R2
(1) The objective of this clause is to ensure that land to which this clause applies is not fragmented by subdivisions that would create additional dwelling entitlements.
(2) This clause applies to land in Zone R2 Low Density Residential.
(4) Despite subclause (3), if the subdivision is of a lot on which there is a dual occupancy (attached) -
[5]
(a) the size of each lot resulting from the subdivision must not be less than 275m2, and
(b) 1 dwelling must be situated on each lot resulting from the subdivision.
[6]
Clause 4.1A(3) refers to Strata Schemes (Freehold Development) Act 1973 and to Strata Schemes (Leasehold Development) Act 1973 both of which are no longer current, however, references to predecessor legislation can (by s 68 of the Interpretation Act 1987) be taken to be references to the current legislation namely, the SSDA.
The parties refer the Court to the following previous decisions that relevantly deal with the interpretation of cl 4.1A of the RLEP and the calculation of the size of a lot resulting from the subdivision pursuant to the strata plan scheme:
The Respondent also concedes that the contentions particularised in the Statement of Facts and Contentions (Ex 1) are not relevant to the Proposed Development and does not rely on them. In effect, the Respondent does not present a case in opposition to upholding the appeal.
The Applicant's case is that the Proposed Development is wholly compliant with all relevant development standards and controls, except for frontage width Part C1 of the Randwick Development Control Plan (RDCP) which I will come back to at [17], and, that as there is no change to the built form as approved (Ex 2, Tabs 2, 3, 5 and 6, and Ex E) the appeal should be upheld and consent granted.
I now set out my findings as to the merits and jurisdictional prerequisites which lead me to conclude that development consent should be granted to the strata subdivision as sought by the Applicant.
The Site is within Zone R2 Low Density Residential under the provisions of RLEP and the Proposed Development remains consistent with the objectives of the zone and I accept the evidence of Mr Betros in the SEE (Ex D) that the proposed subdivision "complies with the relevant objectives and provisions" of the RLEP and RDCP, and "is compatible with the existing and anticipated future character of the locality where there is a range of residential development, including dual occupancies which encompass subdivision of lots whilst being indiscernible from the existing subdivision plan." (SEE, p 15) I am equally satisfied that the "proposed strata subdivision will not generate in a fragmentation of land or any additional dwelling entitlements. The size of each lot resulting from the subdivision will not be less than 275m2 and will be occupied by 1 dwelling. Therefore, complying with the RLEP controls for zoning and minimum lot size." (SEE, p 15)
In Barhom, Gray C at [44] referred to the earlier decision of Albert Square and concludes as follows:
[9]
"The decision of the Court in Albert Square clearly considers the earlier competing decisions and determines the correct approach to the interpretation of cl 4.1A. Having done so, as a matter of comity it is a decision that I should follow unless it is plainly wrong. For the reasons set out above at [23]-[34], I reach the same conclusion as that which was reached in Albert Square and there is no basis upon which I could conclude it to be wrong."
[10]
In accordance with my conclusions in Albert Square, I find that the Proposed Development complies with the 275m2 minimum lot size development standard provided in cl 4.1A of the RLEP. The size of each of the proposed strata lots is determined by the sum of the floor areas depicted in the floor plan for each lot, which is calculated from the areas occupied by the horizontal plane of each cubic space that forms the lot. Proposed strata lot 1 (referred to as dwelling No 1304 or Northern Dwelling) will be 464m2 and proposed strata lot 2 (referred to as dwelling No 1304A or Southern Dwelling) will be 450m2. The SEE helpfully provides as follows:
[11]
"The proposed Strata Subdivision will compose of the following:
I come back now to deal with the frontage width control of 15m in Section C1 of the RDCP. The Respondent included in the Bundle of Documents (Ex 2) the Assessment Report prepared by the Respondent in relation to DA/852/2018, resulting in the consent for the existing dual occupancy (attached) (Tab 1). At page 8 of the Assessment Report, there is a table addressing the relevant provisions of Section C1 of the RDCP and in relation to the 15m minimum frontage control the table states that the proposal is compliant with the following comment:
[15]
"Existing = 14.02m. There are no objections to the non compliance as the land sizer (sic) and development still respects the predominant subdivision pattern of the locality and will still allow for an adequate width to accommodate the development without any adverse impact to the amenity of the adjoining properties and streetscape."
[16]
I conclude that the appeal is to be upheld and the development application for strata subdivision be determined by the granting of consent subject to conditions as agreed between the parties and filed with the Court (Ex 3)
[17]
(1) The appeal is upheld.
(2) Development application No DA/1100/2023 for Strata subdivision of existing dual occupancy to create two (2) new lots at 1304 Bunnerong Road, Phillip Bay is determined by the grant of consent subject to the conditions of consent in Annexure A.