Soligo v Fairfield City Council

Planning controls

1. The site is zoned R2 Low Density Residential Zone under Fairfield Local Environmental Plan 2013 (FLEP). Subdivision is permissible with consent in the zone.
2. Clause 4.1(3) of FLEP and the accompanying Lot Size Map establishes a minimum subdivision lot size for the subject site, and a defined pattern of land around it, of 2000m2. The FLEP also includes an Acid Sulphate Soils Map/Landslide Risk Map which identifies that the subject site (and that similar defined pattern of land) is located within an area of Landslide Risk.
3. Fairfield Citywide Development Control Plan 2013 (FDCP) also applies, in particular, the subdivision chapter (Chapter 14).

Issues

1. The central issue in this application is the contravention of the minimum lot size control fixed by FLEP. Other issues raised were not supported by expert evidence and are considered later.

Assessing minimum subdivision standard contravention

1. The minimum lot size control fixed by FLEP is a development standard under s 1.4 of the EPA Act. Clause 4.6(2) of FLEP permits a consent authority to grant consent even though a development would contravene a development standard, subject to certain preconditions (established otherwise in cl 4.6). A central question before this hearing is whether the permissive powers in cl 4.6(2) are available in this instance. The clause is reproduced relevantly below: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (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. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence.
2. I note that cl 4.6(6) and cl 4.6(8) of FLEP provide exclusionary provisions (ie provisions which restrict the use of cl 4.6(2)). No such exclusionary provisions apply in this instance.
3. As outlined in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action), cl 4.6 provides that I must come to two opinions of satisfaction to open up the permissive powers of cl 4.6(2). The first precondition is at cl 4.6(4)(a) of FLEP. This is that the Court must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii).
4. The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicants' written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and; second, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

Does the written request adequately address the question of whether compliance is unreasonable or unnecessary?

1. In accordance with cl 4.6(3), I have considered a written request from the applicants that seeks to justify the contravention of the development standard. The written request to vary the development standard was prepared by Haskew de Chalain Planning (and Mr D Haskew was the applicants' planning expert in the case).
2. In Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] (Wehbe), a set of common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary were identified (while Wehbe was heard in regard to a State Environmental Planning Policy No 1 - Development Standards (SEPP 1) objection, the principles are commonly seen to be applicable for cl 4.6 variation requests).
3. In the matter before me, the written request relies on the first Wehbe "way": that the objective of the standard is achieved notwithstanding non-compliance with the standard. The written request also references another Wehbe test but I don't need to consider this here because, as will be seen below, I find favourably on the written request's adequacy in regard to the first Wehbe test.

Written request consideration of achievement of objectives of the standard

1. The objectives of the minimum lot size standard in FLEP are reproduced below: 4.1 Minimum subdivision lot size (1) The objectives of this clause are as follows: (a) to ensure that subdivision reflects and reinforces the predominant subdivision pattern of the area, (b) to minimise any likely impact of subdivision and development on the amenity of neighbouring properties, (c) to ensure that subdivision does not exacerbate land fragmentation, (d) to foster viable agricultural undertakings.

Objective at FLEP cl 4.1(1)(a)

1. In regard to the objective at cl 4.1(a), the written request submits that "the predominant subdivision pattern" within Withers Place is characterised by "lots ranging from 900-1100sqm". This seems to be premised on the argument that: "Of the 21 dwellings within Withers Place, the average lot size is 1362sqm with ten lots measuring between 900-1100sqm."
2. The written request goes on to suggest that if Hinder Close and Rutar Place (parallel cul-de-sacs to the east of Hinder Close) are factored in, the predominant lot size comes down again as these lots are "generally in the order of 600-800sqm." "… it is evident that subdivision of 12 Withers Place to create two lots measuring 1006sqm and 1013sqm will in fact better complement the existing subdivision pattern and low density residential environment than would retention of the existing lot size."
3. The request then turns to the physical presentation of the site as a factor in subdivision patterning: "The site currently presents to the street with a large dwelling and an uncharacteristically large amount of surrounding lawn. This patterning is discordant with the streetscape and to the casual observer the undeveloped portion of the site takes on many of the qualities of a vacant lot."
4. Mr Apps argued that compliance with objective (a) of cl 4.1 would require the proposal to "reflect and reinforce the predominant lot size". Mr Apps accepts that while there are lots in this part of Abbotsbury less than 2,000m2: "that (the 2000m2) minimum lot size must be reinforced and not further fragmented." Mr Apps indicated that those smaller lots were created prior to gazettal of the current Fairfield LEP in 2013.
5. A further point to reinforce the LEP's intentions here, according to Mr Apps, is that FLEP 2013 establishes a minimum lot size for the carrying out of a dual occupancy of 4,000sqm which has alignment with the 2,000sqm minimum lot size control. What is being sought here in terms of subdivision patterning is a "2,000sqm precinct". The proposed subdivision would create a new lot that, once developed, would have the same result as the carrying out of a dual occupancy, ie 2 dwellings over the 2,000m2 area. Mr Apps concludes: "Objective (a) of the development standard has not been met as the 2,000sqm lot size is sought to be further fragmented."

Adequacy of written request

1. Figure 1 below provides an excerpt from the Lot Size Map contained in FLEP. The areas designated "v" or red in colour have a 2000m2 minimum lot size control and the rest of the area (coloured green) has a 450m2 control. Figure 1 - Excerpt from FLEP Lot Size Map
2. The two inter-related framing questions to the examination of the written request's adequacy in regard to consideration of the achievement of objective 4.1(a) are: (1) what is the "predominant subdivision pattern" and (2) what, relevantly, is "the area".
3. The written request suggested a more "open" (compared to more "narrow") approach to both questions. It commences with the suggestion of Withers Street as "the area", and its associated pattern of subdivision. Withers Street is not limited to 2000m2 parcels, and the subdivision is argued to readily fit in. Then the written request suggests a broadening out of the area to encompass the two cul-de-sacs to the east, which accommodate much smaller allotments. I reproduce a figure from the joint expert report which depicts the subdivision patterning in the wider site environs (Figure 2).
4. In considering "patterning", the written request went beyond lot sizes and into the more general suburban or physical patterning (at [19]). On this point, Mr Seton submitted that the "battle-axe" access arrangement as proposed, with its narrow lot frontage, was a discordant arrangement in this local patterning. It needs to be considered whether this question has been adequately covered in the written request. I note the existence of narrower frontages around the cul-de-sac head and other battle-axe accessways in the locality. In this instance, I am satisfied that the access arrangement/lot frontage is not so significant as to be considered antipathetic to the prevailing patterning in the locality, and in that sense, do not feel the written request was inadequate to any significant extent on that point.
5. As I understand it, Mr Apps argued that, in part at least in recognition that a central function of cl 4.1 is to operationalise minimum lot size controls, the LEP intention in regard to the terms "predominant subdivision pattern" and "area", are best understood as linked to the Lot Size Map (partially reproduced at Figure 1). Figure 2 - Lot areas in site vicinity (source Joint Expert Planning Report)
6. Overall, I favour the written requests arguments in this contest. I am not convinced that the objective at FLEP cl 4.1(a) is concerned with ensuring subdivision reflects the Lot Size Map. If it were to do so it could have been worded as such, rather than make reference to "predominant subdivision pattern", which without further clarity on intent, can be assumed to have a meaning associated with what exists, rather than what might be intended (online Macquarie Dictionary 2018, describes the term "predominant" as "prevailing"; which is in turn is described as "generally current").
7. It seems clear that the 2000m2 lot size control affects an idiosyncratic or selective area in the Withers Street environs, as shown in Figure 1. This does not relate well to other, more common, geographic interpretations of the term "area".
8. The written request is right in its description of the predominant subdivision pattern in the street as just as much 1000m2 as 2000m2 lot size. I also agree that if one moves beyond the street the predominant pattern is tending to smaller lot sizes. The written request has adequately addressed the need to demonstrate that the proposed subdivision achieves the aim of "(ensuring) that subdivision reflects and reinforces the predominant subdivision pattern of the area".

Objective at cl 4.1(1)(b)

1. Objective 4.1(1)(b) is concerned with minimising likely impact on the amenity of neighbouring properties. Mr Apps saw the proposal as "not antipathetic" to this objective. Mr Seton relied on his cross examination (of Mr Haskew) and submissions to challenge the written request's adequacy on this matter.
2. I have noted the written request, including what might be a summary comment in regard to this objective: "… by virtue of the orientation and generously proportioned size of each of the proposed lots, future residential development of the newly created lot will be capable of imparting nil or negligible amenity impact on its western adjoining owner, whether by way of overlooking, overshadowing or other."
3. The written request went on to examine the particulars of the potential relationship with development at 11A Withers Place, which adjoins the subject land to the west. There was also inclusion of an indicative building envelope plan and arguments submitted that amenity impact would be able to be minimised with future development.
4. Mr Seton submitted that this objective had not been adequately examined, and that moving to a 1000m2 lot size over a 2000m2 lot size logically makes it harder to minimise impact, and therefore the non-compliance acts against the achievement of the objectives of the standard. Mr Seton said that there is guidance in Wehbe in regard to the test at cl 4.1(b).
5. In Wehbe, relevantly, the LEP provision is again concerned with minimum lot size and the provision under scrutiny is: The aim of this clause is to create more varied allotment sizes, improve residential amenity and enhance the environment in relation to land to which this clause applies. Among other things in Wehbe, Preston CJ found at [70] that: (The SEPP 1 objection) does not establish, as it would need to, that the proposed subdivision will result in the level or degree of improved residential amenity that would be afforded by allotments that complied (with the minimum lot size). The original SEPP 1 objection asserts that the proposed allotments of 514 square metres could reasonably accommodate new dwellings which would provide a high level of amenity to future occupants, without compromising the amenity enjoyed by adjoining owners. This does not establish that this level of residential amenity for occupants or adjoining owners is equal to or better than the residential amenity to occupants or adjoining owners that would result from an allotment that conforms to the minimum allotment size of 700 square metres. Unless this is established, the applicant cannot discharge the onus of showing that the proposed subdivision achieves the second aim of the clause establishing the development standard to "improve residential amenity".
6. Ms Reid argued that there is a different test involved in the matter before me than that in Wehbe. The submission was that an objective of "(minimising) any likely impact of subdivision and development on (amenity)" is a more general test than that of "(improving) residential amenity" as was relevant to Wehbe. Ms Reid also highlighted that the minimisation of impact was very directly concerned with the design of housing on allotments.

Adequacy of written request

1. It seems to me that "(improving) residential amenity" is a relatively direct and precise objective, apparently needing something of a before and after evaluation if achievement is to be tested. I interpret the test, in the case before me, of "(minimising) any likely impact of subdivision and development" (my emphasis) as appropriately considered as more general, and warranting less precise an analysis here than would the Wehbe-test referenced above. There are three reasons for my interpretation: (1) to "minimise" is a more restrained test than to "improve", (2) use of the term "likely" brings a conditionality (ie only "likely" impacts are of concern) and connects to (3) the reference to future "development" which brings a further potential dependency, or means of minimising the impact, beyond the current subdivision.
2. Overall, I am satisfied that the written has adequately shown that the development standard's objective to "minimise any likely impact of subdivision and development on the amenity of neighbouring properties" is, to use the terminology of the first Wehbe way at [43], "achieved anyway", with the subdivision as proposed.

Other objectives of the standard

1. The written request indicates that the objective at cl 4.1(c) is not relevant to subdivision of residential land within an already developed urban environment. This objective's concern is reasonably understood to be that of preventing fragmentation of non-urban land, to the extent that it adversely affects its future economic and orderly development prospects. I also agree with the written request that objective 4.1(d), with its concern about fostering agricultural undertakings, does not apply. The written request has adequately demonstrated that these final two objectives of the standard are not threatened by the current application.

Overall adequacy of written request's demonstration that compliance unreasonable or unnecessary

1. Mindful of Wehbe's first way, the written request has adequately addressed the need to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

Does the written request adequately address the question of whether there are sufficient environmental planning grounds to justify contravening the development standard?

1. The written request argues that there are three environmental planning grounds of relevance: street character, consistency with s 4.15 of the EPA Act, and landslide risk. Of these three, I will examine only the third. While, prima facie, I am less convinced of the other two environmental grounds, this is not pertinent as this test of "sufficiency" can be passed with a single "sufficient" environmental planning ground.
2. This point is concerned with what appears to be a factual position that the 2000m2 minimum lot size applying to the site is as a result of perceived geotechnical risk. It is agreed by the experts (Exhibit 3, par 10 ) and can be observed to an extent from a comparison of Figure 1 and Figure 3 , that the 2000m2 lot size boundary more or less corresponds with an area of landslide risk designated in FLEP. Figure 3 - Excerpt from FLEP Landslide Risk Map, show risk area as hatched.
3. The written request notes that a recent geotechnical report has found the landslide risk does not apply to the site. Following the receipt of the report, Council has withdrawn the question of landslip risk from the contentions in this appeal. The written request provides as follows: "A Geotechnical Report accompanies the development proposal and confirms that landslide risk to the site is 'Very Low'. Given that the designation of the 2000sqm minimum lot size appears to be based on the apparent landslide risk to the precinct, the evidence demonstrated in the geotechnical report provides sufficient grounds to contravene the development standard."
4. In my opinion, the written request's reference to uncontested evidence of there no longer being a geotechnical justification for the inclusion of the subject land in the landslip risk category, is an environmental planning ground. Its significance is such that I find that the written request has adequately addressed the need to demonstrate there are sufficient grounds to justify contravening the standard.
5. As indicated above, I have formed the required two positive opinions of satisfaction under cl 4.6(4)(a)(i). That is, that the applicants' written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3).

Whether the proposal is in the public interest because it is consistent with the objectives of the standard and the objectives for development within the zone

1. I can now turn to cl 4.6(4)(a)(ii). This requires me to have a direct opinion of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out.
2. The term "consistent" has been considered in many judgements of the Court, albeit perhaps more so in regard to consistency with zone objectives. Here, I am happy to rely on the summary prepared by Tuor C in Moskovich v Waverley Council [2016] NSWLEC 1015 at [53]: …(the term consistency) has been interpreted to mean "compatible" or "capable of existing together in harmony" (Dem Gillespies v Warringah Council (2002) 124 LGERA 147; Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190) or "not being antipathetic" (Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21).

Consistency with objectives of minimum lot size standard

1. Objective 1(a) of the minimum subdivision lot size clause, and thus, reasonably, the standard itself is: to ensure that subdivision reflects and reinforces the predominant subdivision pattern of the area,
2. I have listened to the evidence and submissions on this question of consistency. It is unreasonable, given the patterning that exists at both the local street scale and the wider scale, to take the view that a 2000m2 minimum lot size is the predominant subdivision pattern in the area. At the local street scale, I am satisfied that the subdivision as proposed would reflect and reinforce the predominant subdivision pattern of the area. From the perspective of the wider scale, I don't think this subdivision would be antipathetic to the objective.
3. Objective 1(b) is: to minimise any likely impact of subdivision and development on the amenity of neighbouring properties,
4. I note here that the planning experts agreed in their evidence that: "(The) proposal is not antipathetic to objective (b) above as the proposal is unlikely to have an impact on the amenity of adjoining properties which are in the main, already less than the 2,000m2 minimum and that the size of the proposed lot is adequate to allow for a development that does not unreasonably impact on existing development by way of overshadowing, privacy and the like."
5. I have considered Mr Seton's submissions on this at [33]-[34] and in my later evaluation. Again, I can find directly that the proposal is consistent with this objective, based on the evidence before me.
6. The third and fourth objective are not readily applicable to this proposal for the reasons indicated at [38], and again I find that the proposal is not antipathetic to the achievement of either objective.
7. In accordance with the above, I am of the opinion that the proposal is in the public interest because it is consistent with the objectives of minimum subdivision lot size standard.

Whether the proposal is consistent with the objectives of the R2 Low Density zone

1. The objectives of the R2 zone, as contained in FLEP, are reproduced below: Zone R2 Low Density Residential Objectives of zone • 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 day needs of residents.
2. The first zone objective is pertinent. Both experts agreed that the setting in Withers Street was a low density residential environment, with or without the subdivision. Mr Haskew said this subdivision would create two lots considerably larger than lots which would commonly fall into FLEP's R2 Low Density Residential zone. Mr Apps said that the subdivision as proposed would still provide for a low density residential environment, and does not contest that the proposal would be consistent with the zone objective. I agree with this view.
3. In regard to the second zone objective, the proposal makes no reference to enabling other land uses which might provide facilities or services for residents. I see the proposed subdivision as not antipathetic to that objective.
4. In accordance with the above, I am of the opinion that the proposal is in the public interest because it is consistent with the objectives of the R2 Low Density zone.

Considering provisions for concurrence of the Secretary

1. The final aspect of cl 4.6(4) which would normally need to be satisfied is that the concurrence of the Secretary (of the Department of Planning and the Environment) has been obtained (cl 4.6(4)(b)). When a matter is on appeal, the Court is not required to obtain the concurrence of the Secretary, however it should still consider the matters in cl 4.6(5) (see Initial Action at [29]).
2. The planners agreed in the joint expert report that the contravention of the standard does not affect matters of State significance. I agree with this view and, mindful of cl 4.6(5)(b), do not see any particular public benefit from maintaining the development standard in this instance.

Finding on minimum subdivision standard contravention

1. In accordance with the above findings, the conditions which are required to be satisfied before the permissive power in cl 4.6(2) of FLEP comes into effect (ie to grant development consent for a development that contravenes the development standard) have been met. This enlivens the power of the Court to grant development consent for this subdivision despite its contravention of the minimum subdivision lot size standard.

Other considerations

1. I have reviewed the Council's contentions. Two other issues warrant mention.
2. First, in regard to the contention that the proposed subdivision would not be in the public interest because it would set an undesirable precedent. The planning experts joint report provides as follows: "The planners note that, given the size, shape and development on other lots of 2,000m2 in the areas affected by that minimum lot size standard, it is unlikely that other land owners would seek to subdivide. To do so, would require the demolition of substantial homes and landscaping." I agree with the experts that, in this instance, precedent concerns are not well founded and that the proposal can be considered on its own merits. Second, is in regard to the contention that the 2000m2 lot size was imposed to ensure maximisation of tree retention and minimise site disturbance. Here, I also rely on the experts who found that the proposed subdivision would not result in the loss of vegetation. There was also recognition of the relatively benign gradients evident on the subject land, and thus less likelihood of site disturbance than on the steeper lands nearby.

Finding

1. On the basis of the above analysis of the issues and evidence, I am satisfied that the application is acceptable and should be approved subject to the conditions at Annexure A.

Orders

1. The orders of the Court are: 1. The written request made, pursuant to clause 4.6 of Fairfield Local Environmental Plan 2013, to vary the minimum lot size standard prepared by Haskew de Chalain Planning, dated August 2018 is upheld. 2. The appeal is upheld. 3. Development Application No. 428.1/2016 to subdivide an existing allotment into two Torrens Title allotments at 12 Withers Place Abbotsbury is approved subject to the conditions at Annexure A. 4. Exhibit D is returned.

---

P Walsh Commissioner of the Court Annexure A (43.0 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: 18 September 2018