Stalwart International Pty Limited v Randwick City Council

Land and Environment Court (NSW)|2021-08-19

Judgment

COMMISSIONER: This is a Class 1 appeal filed with the Land and Environment Court (the Court) pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal under delegated authority by Randwick City Council (Council) of Development Application DA/45/2021 (the DA). The DA seeks consent for the Torrens title subdivision of a single lot into two lots, on which is built a recently approved and constructed dual occupancy development.

The site, existing development, and existing planning controls

Proposed changes to planning controls

On 12 September 2021 the NSW Department of Planning Industry and Environment (the Department) granted Gateway Approval pursuant to s 3.34 of the EPA Act to a Planning Proposal for a comprehensive amendment of the RLEP (Planning Proposal). The Planning Proposal includes a reduction in the minimum subdivision lot size for all residential development in the R2 Zone from 400m2 to 275m2. Further details of the Planning Proposal are set out later in this judgement. At the date of this judgment the Planning Proposal had not been the subject of public consultation pursuant to s3.34(2)(c) and I have not, therefore, considered it as a matter for consideration under s 4.15(a)(ii) of the EPA Act. I have, however, considered it as a matter of relevance in terms of the public interest under s4.15(e) of the EPA Act and cl 4.6(5) of the RLEP (refer pars [75] to [90] of this judgement).

Background

The DA was notified by Council between 12 February 2021 and 26 February 2021, resulting in the receipt of one submission, which raised issues relating to the Original Approval. It did not raise concerns with the proposed subdivision. On 25 March 2021 the Class 1 Application was filed with the Court, and on 11 May 2021 the Council filed its Statement of Facts and Contentions (SOFC) that became Exhibit 1 in the proceedings. On 19 May 2021 the Applicant filed its Statement of Facts and Contentions in Reply (SOFC in Reply) that became Exhibit A in the proceedings.
The Court listed the matter for 19 and 20 August 2021, to be heard and determined pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). In preparation for the Court proceedings the town planning experts, Ms Jennie Askin for the Applicant and Mr Sohail Faridy for the Council, conferred and prepared a "Joint Experts Report Planning" that was filed with the Court on 20 July 2021 (Joint Planning Report) and became Exhibit 3 in the proceedings. The Council prepared a set of proposed draft Conditions of Consent which it filed in final form on 12 August 2021 (Draft Conditions). The Draft Conditions became Exhibit 4 in the proceedings.
The proceedings commenced on 19 August 2021 with what turned out to be a brief conciliation conference between the parties, pursuant to s 34AA of the LEC Act. Due to the Court's Covid 19 policy in place at the time, there was no view of the site, and the proceedings were conducted via Microsoft Teams. At the commencement of the proceedings the Council advised that the matters in contention had not been resolved and it was not in a position to reach an agreement. As the parties failed to reach an agreement as to the terms of a decision that would be acceptable to them, I terminated the s34AA conference and a hearing pursuant to s 34AA(2)(b)(i) of the LEC Act commenced that morning and concluded the following day.
Mr Flanigan for the Council commenced with a summary of what is essentially one matter in contention, namely that the proposed subdivision would result in non-compliance with the 400m2 minimum lot size development standard at cl 4.1 of the RLEP, which the Council maintained should not be varied pursuant to cl 4.6 of the RLEP.
Mr Briggs, in opening, referred to the extent of the non-compliances as set out and agreed between the planning experts at par (2.2) of the Joint Planning Report, namely that the proposed Lot 1 had an area of 377.1m2 (5.72% smaller than the minimum area) and proposed Lot 2 had an area of 364.4m2 (8.9% smaller). He submitted that there were no merit issues in contention as the dual occupancy development in the Original Approval had been constructed, and this was not disputed. Mr Briggs summarised the matters in contention arising from the non-compliance with the minimum lot size as: 1. compliance with the zone objectives, 2. the future development potential arising from the increase in FSR pursuant to cl 4.4(2A) of the RLEP that is afforded by the reclassification of the dwellings to semi-detached dwellings, 3. the subdivision pattern and precedent, and 4. whether the cl 4.6 variation request was well founded and should be upheld.
The Court was assisted in its consideration of this matter by the Joint Planning Report, oral evidence of the authors of that report, Ms Askin and Mr Faridy, the Statement of Environmental Effects prepared by aSquare Planning dated January 2021 (SEE) and Amended Clause 4.6 variation request at Annexure D of the Joint Planning Report, a video of the Site and surrounds (Ex F), various photographs of the Site and other development in Windsor Street (Ex G), and various other exhibits including the Council's Housing Strategy Vision 2040 (Ex H), and Local Strategic Planning Statement Vision 2040 (Ex J).

Non-compliance with minimum lot size and cl 4.6 variation request (Contentions 2 and 3)

Clause 4.6 of the RLEP imposes on the consent authority a prerequisite that establishes the power to grant development consent. If I am not satisfied that the provisions of the clause are met, then consent cannot be granted. As this is a fundamental threshold 'test' I have dealt with this first. Clause 4.6 of the RLEP states: 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 Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning 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 Planning Secretary before granting concurrence.
Clause 4.6(4)(a) of the RLEP therefore requires me to be satisfied that: 1. the clause 4.6 request has demonstrated "that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case"; and 2. the clause 4.6 request has demonstrated "that there are sufficient environmental planning grounds to justify contravening the development standard"; and 3. I am independently satisfied that "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" (emphasis added).
I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of the RLEP, but I have nevertheless considered the matters in cl 4.5(5)(a) and (b) in coming to my conclusions. This is dealt with in par [89] dealing with the public interest.
The parties agree the proposal will result in lot sizes less than the minimum development standard of 400m2 at cl 4.1(3) and shown on the Lot Size Map of the RLEP. They also agree on the extent of the non-compliance: of 22.9m2 (5.72%) less than the minimum standard for proposed Lot 1 and 35.6m2 (8.9%) for proposed Lot 2.
The Applicant lodged with the DA a written request pursuant to cl 4.6 of the RLEP to vary the minimum lot size development standard. That request, prepared by Ms Askin and dated 29 January 2021 (Clause 4.6 Request), is found at Appendix 1 of the SEE (Ex D) and an amended version of the Clause 4.6 Request, dated 16 July 2020, also prepared by Ms Askin, was attached to the Joint Planning Report as Annexure D (Amended Clause 4.6 Request). My consideration relates to the latter document, the Amended Clause 4.6 Request.
At par (3.5) of the Joint Planning Report Ms Askin states she amended the Clause 4.6 Request by updating the reference to Council's Housing Strategy, following Council resolutions of 1 June 2021 and 29 June 2021. Par (3.5) states that at these meetings "the Council resolved to initiate a process to amend its planning controls to reduce the minimum lot size for the subject site from 400m2 to 275m2." Copies of the Council resolutions referred to are attached as Annexures C and D of the Joint Planning Report. At par (3.5) Ms Askin states that the Amended Clause 4.6 Request "does not rely solely on the draft amendment but it is relevant in terms of the strategic direction of Council."
In accordance with the requirements of cl 4.6(3)(a) of the RLEP, I am satisfied that the Amended Clause 4.6 Request has adequately addressed whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. In demonstrating that the development is "unreasonable or unnecessary" the Amended Clause 4.6 Request relies on the first test established by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), namely that the objectives of the standard are achieved notwithstanding the non-compliance with the standard.
The objectives of the minimum lot size development standard at cl 4.1 of the RLEP are: (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.
Section 4 of the Amended Clause 4.6 Request specifically addresses how the objectives of the development standard are met. Section 4 also includes a number of points that are not directly related to the objectives of the standard (the first test in Webhe) although it is conceivable they provide some context as "circumstances of the case". Such "circumstances" include the references to other approvals and Council's recent resolutions regarding policy changes with respect to the minimum lot size. In my assessment of the Amended Clause 4.6 Request's satisfaction of cl 4.6(3)(a), I have not given weight to the "circumstances" that go beyond the objectives of the standard, as the Amended c Clause 4.6 Request relies on the latter to establish that compliance is "unnecessary or unreasonable."
I accept that section 4 of the Amended Clause 4.6 Request, excluding the "circumstances", nevertheless adequately demonstrates that the proposed development achieves the objectives of the standard, and in particular (to paraphrase the Amended Clause 4.6 Request): 1. The proposed subdivision will not have an adverse impact on the amenity of neighbouring properties, and therefore Objective (a) is achieved. 2. The Site does not contain, and the lot sizes do not threaten the protection of natural or cultural features, heritage items, trees or views, and therefore Objective (b) is achieved. 3. The lot sizes are capable of accommodating the (reclassified) semi-detached dwellings, which are suitable for their purpose as evidenced by the Original Approval and therefore Objective (c) is achieved.
As the first test in Wehbe is satisfied there is no need to demonstrate that compliance is unreasonable or unnecessary in more than one of the ways outlined in Wehbe: refer to (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) Preston CJ at [22]).
I now turn to whether the Amended Clause 4.6 Request has adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard, as required by cl 4.6(3)(b). On this matter I also find in the affirmative. In reaching this conclusion I have been assisted by Eather v Randwick City Council [2021] NSWLEC 1075 (Eather) in what may be considered "environmental planning grounds".
The circumstances of Eather are not dissimilar to this matter. Eather was an appeal against the refusal by Randwick City Council of an application for the subdivision of an allotment of R2 zoned land, upon which had been constructed a dual occupancy development, and which relied on cl 4.6 of the RLEP to vary the 400m2 minimum lot size development standard. In Eather the proposed allotments were 392.9m2 (1.7% less than the standard) and 373.7m2 (6.5% less than the minimum standard. At pars 27 to 39 in Eather, Walsh C addresses "environmental planning grounds". At par [39] Walsh found: "The fact that the particularly small departure from the actual numerical standard and lack of any material impacts consequential of the departure are sufficient environmental planning grounds to justify contravening the development standard. The written request's drawing of an alignment between the lot sizes as proposed and the strategic intentions of Council as understood from particulars of Council's Local Strategic Planning Statement … prepared in accordance with the requirements of s3.9 of the EP&A Act, and Draft Housing Strategy which suggests changes to minimum lot sizes under a future change to the RLEP, is a further environmental planning ground justifying the contravention of the subdivision standard."
At [40] Walsh continued: "Together the above findings mean the applicant's written request has adequately addressed the matters required to be demonstrated cl 4.6(3) of the RLEP."
In my consideration of the Amended Clause 4.6 request I accept the following "environmental planning grounds" identified within section 2: 1. The proposal is not dissimilar in terms of lot sizes, orientation (north-south) or rectilinear shape, nor inconsistent with the pattern of subdivision or dwelling forms in Windsor Street and provides a "compatible streetscape outcome" that is consistent with the emerging character of the street. 2. The subdivision and non-compliance of the lot sizes would not be discernible to a resident of the development, a neighbour or from the public domain. 3. The proposal does not alter the built form arising from the approved dual occupancy, and non-compliance with the minimum lot size does not compromise the ability to provide dwellings which meet or outperform the requirements of the RLEP and DCP for semi-detached dwellings. 4. Council's resolutions at its meetings of 1 June 2021 and 29 June 2021: "… to initiate a process to amend its planning controls to reduce the minimum lot size for all land zoned R2 Low Density Residential zone from 400m2 to 275m2 (with the exception of land within a Heritage Conservation Area). A planning proposal to this effect has been lodged with the Department of Planning, Industry and Environment for a gateway determination and this is currently being assessed." (p 10 of the Amended Clause 4.6 Request). The proposed allotment sizes assessed against the foreshadowed minimum area of 275m2 are significantly in excess of that minimum: Lot 1 by 37.1% and Lot 2 by 32.5% according to the figures at p 10 of the Amended Clause 4.6 Request.
The Amended Clause 4.6 Request attaches a copy of the report to Council entitled "Director City Planning Report No. CP35/21 Randwick Comprehensive Planning Proposal - Minimum Lot Sizes and dual occupancy provisions in the R2 Low Density Residential Zone", dated 1 June 2021 (Council Planning Proposal Report), and a copy of the resolution of Council which is consistent with the recommendations of the Council Planning Proposal Report. The Council resolved, amongst other things: 1. to endorse that part of the Planning Proposal that amends the RLEP in relation to minimum lot sizes for the R2 Zone to reduce the minimum lot size in that zone from 400m2 to 275m2; 2. forward that part of the Planning Proposal relating to minimum lot sizes and dual occupancy provisions in the R2 Zone to the Department under s3.34 of the EPA Act; 3. endorse the exhibition of the Planning Proposal once Gateway Approval is provided; and 4. commence the preparation of a new Randwick Comprehensive Development Control Plan to support the Planning Proposal.
As the Council Planning Proposal Report is attached to and forms part of the Amended Clause 4.6 Request I have taken it into consideration as it provides evidence of a Council strategic planning initiative that falls within the aims of the EPA Act. I note in particular that the Council Planning Proposal Report refers to: 1. The "Strategic context" of the Planning Proposal as Action 2.1 of the endorsed Randwick Housing Strategy. 2. "Lot size requirements for the subdivision of dual occupancies were one of the key issues raised by the community during the exhibition of the draft Local Strategic Planning Statement (LSPS) and Housing Strategy, (which discussed the potential for the reduction in the minimum lot size to 350m2), with submissions in support of a further reduction to the minimum lot size required to subdivide dual occupancies" (emphasis added). 3. the "Objectives and Intended Outcomes" of the Planning Proposal are to

"Provide housing capacity to meet Council's 6-10 year housing target of 4,300 new dwellings by 2026.
Increase housing diversity and choice to support our growing and diverse population."

Council's initiatives to reduce the lot sizes as a means of providing additional housing to meet its 6-10 year housing targets have progressed further since the Eather decision was handed down. At the date of the Amended Clause 4.6 Request the Council had not only endorsed submission of a planning proposal to the Department for a Gateway Determination, it had endorsed for exhibition, a minimum lot size that was further reduced from the 375m2 referred to in the Housing Strategy to 275m2.
Not dissimilar to Walsh's findings in Eather, I find that the strategic planning initiatives of Council are, in this case, sufficient environmental planning grounds justifying contravention of the development standard. This is because they form part of an endorsed set of local planning strategiesthat have been through a public consultation process and specifically relate to the development standard and zone in question.
For the reasons above, I am therefore satisfied that the Applicant's Amended Clause 4.6 Request has adequately addressed the two matters referred to in cl 4.6(3) as required under cl 4.6(4)(a)(i) of the RLEP.
I now turn to the requirements of cl 4.6(4)(a)(ii) of the RLEP that, independent of the Amended Clause 4.6 Request, I must be satisfied before consent can be granted that the proposed development will be in the public interest because: 1. it is consistent with the objectives of the particular development standard, and 2. it is consistent with the objectives for development within the R2 Zone.
The objectives of the development standard are addressed in the Amended Clause 4.6 Request and based on my consideration of that request I have found, for the reasons in par [25] above, that those objectives are satisfied notwithstanding the non-compliance of the development with the numeric control.

Consistency with objectives of the R2 Zone

In Contention 1 of the SOFC Council maintains that the proposal should be refused because it is inconsistent with the zone objectives for the R2 Zone. I am also required to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone" pursuant to cl 2.3(2) of the RLEP.
In considering the consistency with the objectives of the R2 Zone I have been assisted by the evidence of the town planners in their consideration of Contention 1 and their consideration of the Amended Clause 4.6 Request (Contention 3) insofar as it deals with those objectives. I have also been assisted by the decision in Schaffer Corporation Ltd v Hawkesbury City Council [1992] NSWLEC 76; (1992) 77 LGERA at (21) in which Pearlman J wrote, when considering consistency with zone objectives: "The guiding principle, then, is that development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible."
The objectives of the R2 Zone are quoted in full below. The objectives shown in bold text are those the Council maintains, in the particulars to Contention 1, are relevant to this DA. The remaining objectives are either satisfied or not relevant and were not in contention between the parties. 1. Objectives of zone - To provide for the housing needs of the community within low density residential environment. - To enable other land uses that provide facilities or services to meet the day to day needs of residents. - To recognise 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. - To protect the amenity of residents. - To encourage housing affordability. - To enable small-scale business uses in existing commercial buildings.
In their response to Contention 1 the planners in the Joint Planning Report raise the issue of Council's recent strategic planning direction with respect to minimum lot sizes in the R2 Zone. This is not directly related to the objectives of the R2 Zone and I have addressed this particular issue in my consideration of the environmental planning grounds above in pars [27] to [34], and my consideration of the public interest below in pars [75] to [90].
The first of the highlighted objectives of the R2 Zone relates to the "desirable elements of the existing streetscape and built form, or … (that) contribute to the desired future character" The character of Windsor Street evident from its existing and emerging built form is shown in the video tour of the street (Ex F), photographs of the houses taken from the street (Ex G) and the aerial photo (Ex K) which together depict the pattern of single dwelling houses, attached dual occupancies and semi-detached houses along Windsor Street. The distinction between the attached dual occupancies and the semi-detached dwellings in Windsor Street is one of land tenure, rather than built form; the semi-detached dwellings being subdivided by Torrens Title.
The western half of Windsor Street, to the west of, and including numbers 34 and 33, contains 9 single dwelling houses and 14 dwellings that are either semi-detached dwellings or one of a pair of attached dual occupancies (including the two dwellings on the Site). The eastern half of Windsor Street, to the east of, and including numbers 36 and 35, contains 15 dwelling houses and one attached dual occupancy (two dwellings). Most of the dual occupancy or semi-detached dwellings appear to have been constructed more recently than the single dwelling houses. Windsor Street may therefore be characterised as one in transition, and transitioning towards attached dual occupancy, or semi-detached dwellings, with the western half of the street particularly so.
In the Joint Planning Report Ms Askin contends at par (1.15) that the proposed subdivision is not evident in the streetscape, and at par (2.11) and in oral evidence Mr Faridy agreed. Mr Faridy also agreed in oral evidence that the emerging character arises from the built form rather than the subdivision pattern "on paper". I agree with the planners that the subdivision pattern of the emerging semi-detached dwellings is not evident in the streetscape. Nor is it a discernible element contributing to the streetscape character. The proposed development for subdivision is therefore not inconsistent to the first of the highlighted objectives of the R2 Zone.
I also agree with the evidence of the planners that the subdivision does not affect the amenity of the residents. The amenity considerations arising from the development of the dwellings on the land was assessed and found to be satisfactory as part of the Original Approval for those dwellings. The subdivision of the land, whilst it changes the classification of the dwellings from "dual occupancy (attached)" to two "semi-detached dwellings" does not change the residential land use, the built form, or impact on the amenity of the residents. The proposed development is therefore not inconsistent with the second of the highlighted objectives of the R2 Zone.
With respect to the proposed subdivision "encouraging housing affordability" the parties were divided. Council contends in the particulars to Contention 1 that "an attached dual occupancy development under single ownership would be more likely to be rented or occupied by an extended family, which would be consistent with the objectives of the R2 Zone and the aims of the RLEP which include encouraging the provision of housing mix, tenure choice and affordability."
Mr Faridy's position in the Joint Planning Report at par (1.12 is that the subdivision is not considered to add to the housing supply, housing choice or affordability. In his view "an unsubdivided dual occupancy is most likely to add to affordable rental housing in the area whereas once subdivided it is most likely to be sold separately and owner occupied" (emphasis added).
In oral evidence Mr Faridy agreed that housing supply is not changed by the subdivision, that supply is not expressly an objective of the zone, and that housing affordability is the key element. He said the term "housing affordability" was not defined. Mr Faridy accepted that the R2 Zone objective referring to housing affordability did not relate to the State Environmental Planning Policy (Affordable Rental Housing) 2009. He advised, however, that housing affordability was dependent on a number of factors, agreeing this included the size of the land, acknowledging that larger lots were generally more expensive; the size of the building, acknowledging that larger buildings were generally more expensive to construct; and possibly the age of the building, acknowledging that newer buildings were possibly more expensive.
In his view housing development that is unsubdivided is more likely to be affordable housing because it is in the rental market, and whilst he did not know the outcome of a prospective sale the "likely scenario" was that it would be owner occupied and not be in the rental market.
I note the term "housing affordability", the encouragement of which is an objective of the R2 Zone, is not defined in the RLEP. The term "affordable housing" is, however, defined pursuant to cl 1.4 in the Dictionary as having the same meaning as in the EPA Act, which states: "Affordable housing means housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument."
No evidence was provided of what constitutes very low, low, or moderate income households in the relevant market, nor households prescribed by the regulations or as provided for in an environmental planning instrument.
Mr Faridy agreed that he had no evidence to substantiate his claim in par (1.12) that the unsubdivided dual occupancy ".is most likely to add to affordable rental housing in the area". Nor did he have evidence of the local supply or demand for rental housing, the mean rents, or the rental returns for the property.
Ms Askin in oral evidence when asked about the increased affordability of the housing if there were no subdivision, replied she did not know as she was not a valuer. Neither Mr Faridy nor Ms Askin are qualified valuers and opinions on housing affordability by them is of limited weight as a result, particularly when there is a lack of market, or other data to substantiate any claims. I am not persuaded by Mr Faridy's opinion alone that if the proposed subdivision were permitted there would be, or "most likely" would be, less rental housing in the market, or that if the housing were rented, whether subdivided or not, it would be affordable (rental) housing as defined (emphasis added). Accordingly, I find that the proposed development is not inconsistent with the third objective of the R2 Zone.
I am therefore satisfied that the proposed development is in the public interest because it is consistent with both the objectives of the R2 Zone and the objectives of the particular standard and the provisions of cl 4.6 (4)(a)(ii) of the RLEP are met.
I now turn to the remaining outstanding issues that were in contention between the parties.

Existing subdivision pattern, precedent and fragmentation of land holdings

The issue of the existing subdivision pattern and the setting of a precedent should it be approved is raised in various particulars in the Contentions. In summary the Council contends that: 1. The "existing subdivision pattern is largely intact, with the exception of a few approved Torrens subdivision of dual occupancies" (Contention 1, particular (d)". 2. Any subdivision resulting in a lot size smaller than the minimum would "disrupt this pattern" and "result in an undesirable precedence [sic]". (Contention 1, particular (e) and Contention 2, particular (i)). 3. The proposed lot size is inconsistent with the objectives of the Minimum Lot Size and Frontage requirements in Part C1, clause 2.1 of the DCP, would create lots "smaller than the minimum lot sizes disrupting the existing subdivision pattern and setting an undesirable precedent" (Contention 4(b)). 4. The proposal results in two lots that are non-compliant with the minimum street frontage requirement of 12m found at Control 2.1(i) in Part C1 of the DCP (Contention 4(c)).
The Joint Planning Report includes a table at par (2.15) that identifies the dual occupancies and semi-detached dwellings in Windsor Street, their approval dates, their subdivision status, and whether they are approved under the previous cl 4.1D of the RLEP. The aerial photograph at Ex K is an A3 sized colour version of Figure 1 of the Joint Planning Report and has a colour-coded overlay of the subdivision pattern in the street, reflective of the table at par (2.15) of the Joint Planning Report. That table is reproduced below. Address Subdivision Approval Date 22 & 22A Windsor St Registered Torrens Approved by L&EC (2017/34261) on 16 June 2017 as 2 lots Torrens subdivision and erection of semi attached dwellings. Lot 1 = 381.5m2, Lot 2 = 388.8m2. 26 & 26A Windsor St Registered Torrens Two lots Torrens subdivision and erection of semi attached dwellings approved under staff delegation on 14 January 2015 (DA/709/2014) 28 & 28A Windsor St Registered Torrens Dual occupancy was approved on 9 January 2004 under DA/1055/2003. Subdivision approved on 7 December 2018 under DA/870/2018 (Clause 4.1D) 38 & 38A Windsor St Unregistered strata Dual occupancy was approved on 11 November 2003 under DA/898/2003. 17 & 19 Windsor St Unregistered Torrens Dual occupancy was approved on 10 January 2006 under DA/949/2005. Subdivision approved on 22 November 2018 under DA/794/2018 (Clause 4.1D) 29 Windsor St Unregistered Torrens Dual occupancy was approved on 23 April 2014 under DA/111/2014. Subdivision approved on 31 March 2020 under DA/29/2020 (Clause 4.1D) 31 Windsor St No subdivision Dual occupancy was approved on 3 May 2019 under DA/423/2018*. 33 & 33A Windsor St Registered Torrens Dual occupancy was approved on 29 November 2016 under DA/608/2016. Subdivision approved on 6 March 2019 under DA/89/201 (Clause 4.1D)

Clause 4.1D of the RLEP provides: 4.1D Subdivision of dual occupancies (attached) in Zone R2 (1) This clause applies to a dual occupancy (attached) on land in Zone R2 Low Density Residential for which development consent was granted before 6 July 2018. (2) Despite any other provision in this Plan, development consent may be granted for the subdivision of a dual occupancy to which this clause applies if the development meets the standards specified in the following provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 - (a) for strata subdivision - clause 6.2, or (b) for Torrens title subdivision - clause 6.4.
The parties agree that because the dual occupancy development on the Site was approved after 6 July 2018, cl 4.1D of the RLEP does not apply to this DA. It does, however, explain the Torrens Title subdivision of some of the dual occupancy development in Windsor Street that are referred to in the table above - namely those approved prior to 6 July 2018, and for which development consent to subdivide was granted after cl 4.1D came into effect in 2018 as an amendment to the RLEP.
Ms Askin confirmed in oral evidence that there are 35 lots in Windsor Street, of which 7 have approvals for subdivision and that all of those approvals complied with the minimum lot size in force at the time, except for one approved by the Court, and this was not disputed.
Ms Askin's evidence is that the proposed subdivision is consistent with the objectives of the minimum lot size development standard as set out in the Clause 4.6 Request, and that the lot sizes are comparable to adjoining and nearby lots.
Mr Faridy's evidence is that: 1. the proposal is inconsistent with "the approved subdivided dual occupancies along Windsor Street" and with "Council's position of minimum lot size controls for subdivision of dual occupancies" (par(2.12) of the Joint Planning Report); and 2. that the proposal seeks to vary the standard "in such a manner that has not been done in this locality and this will clearly set an undesirable precedence [sic] while also disrupting the existing subdivision pattern." (par (2.17) of the Joint Planning Report).
There are two aspects to this issue: 1. the existing subdivision pattern and the history of the approvals that have created that pattern; and 2. whether the minimum lot size should be maintained so as not to set "an undesirable precedent".
There currently exists a subdivision pattern, as illustrated in Ex K, of essentially two types of rectangular allotments: the 28 'traditional' lots that have a width of (generally) between 15m - 16m, and the 'narrow' lots which have a width of half that of the 'traditional' lots: that is (generally) between 7.5m-8m, as the 'traditional' lots became subdivided 'down the middle'. Four of the former 'traditional' lots have been subdivided in this manner; two have approval for Torrens title subdivision but the titles have not been registered, and one has approval for strata subdivision that has also not been registered. Both types of lots ('traditional' or 'narrow') have the consistent elements of a north/south orientation and a street frontage - that is, they are not subdivided in a battle-axe arrangement. The 'narrow' allotments do not comply with the minimum street frontage width of 12m required by the DCP.
The history of the approvals that resulted in the subdivision pattern provides an explanation of how the pattern came about, and Mr Faridy maintains it demonstrates that Council has consistently applied the minimum lot standards found in the planning controls applicable at the time of those approvals. He also acknowledged that the 2017 approval by the Court for subdivision of number 29/29A Windsor Street did not comply with the minimum lot standard applicable at the time but relied on a clause 4.6 request to vary the standard.
Whilst this history provides a context to the pattern of subdivision it does not, however, alter the fact that the subdivision pattern exists and that it comprises essentially two types of allotments. Based on the evidence of the existing subdivision pattern, including the unregistered but approved subdivisions, I find that the proposed development is not inconsistent with that pattern as it would result in allotments of a size, frontage and configuration that are not uncommon in the street.
In the Joint Planning Report in response to Contention 4 Mr Faridy raised the FSR issue, as follows: "… the subdivision of land into two lots will not impact on streetscape if the development remains in the from (sic) it has been approved. However, the approval of this subdivision creates an opening for higher FSR that will alter the building footprint in addition to disrupting the subdivision pattern" (par 4.8 of the Joint Planning Report).
Approval of the DA would mean the maximum FSR, arising with reclassification of the dwelling type to "semi-detached dwelling" by virtue of cl 4.4(2A)(a) of the RLEP, is 0.75:1. The maximum FSR currently applying to the "dual occupancy attached" development is 0.5:1 by virtue of the cl4.4(2) and the FSR Map. This issue was explored in oral evidence. Mr Faridy's oral evidence was that this creates an expectation that a higher FSR would be approved and it would be difficult to refuse a development that complied with the FSR. Mr Faridy agreed, however that any future development application to increase the floor space on the site would be subject to a myriad of other controls, that alterations and additions to the existing dwellings could be made at the rear without affecting the streetscape and could be bigger without compromising the building envelope or other controls.
Any future development proposal that involves an increase in the FSR of the semi-detached dwellings would need to be considered in the context of the planning controls in place at the time and on its own merits. The fact that the RLEP allows for a greater FSR for semi-detached dwellings does not preclude the subdivision from proceeding and is not determinative in this case.
With respect to the issue of whether approval would result in "an undesirable precedent" I am assisted in my consideration by Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways Management Act [2002] NSWLEC 75 (Goldin) where Lloyd J, in referring (at par [28] ) to Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177 (Emmott): "As I understand the decision, 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."
In applying the above principle, the first step is to determine whether, based on the evidence in this case, the development is "objectionable in itself". If it is objectionable, then "the probability of further applications of a like kind" needs to be also established, as both preconditions must apply.
I have already established, based on the agreed evidence of the town planners, that the proposed development will have no material impact on the streetscape, character of the area; built form; natural, cultural or special features such as existing trees or views; nor the amenity of the residents of adjoining properties. In short I can see no reason to find the development is "objectionable in itself", unless one gives determinative weight to compliance with the numeric standard in and of itself. Determinative weight to non-compliance with the standard as "objectionable in itself" would however, in my view, be counter to the intent of cl 4.6 of the RLEP which is to provide flexibility in the application of such standards, and to my earlier finding that, in this particular matter, the Clause 4.6 Request should be upheld.
I have also found, at par [34] that the Council's recent strategic planning shift evident in its' Housing Strategy and changes to the minimum lot sizes, as proposed in the Randwick Comprehensive Planning Proposal, is a relevant environmental planning ground for variation of the standard, and in addition, for the reasons set out below at par [89], the public interest would not be served by refusing the application.
The particular circumstances of this case, including the proposed change to the minimum lot size and the particular characteristics of the Site and street in which it is located, are unique to this DA at this point in time, and it does not follow that my decision would necessarily set a precedent for other development applications on other sites and involving a different set of circumstances.

Public Interest and Council's changes to its planning policies and proposed change to its minimum lot size in the R2 Zone

I have taken into consideration, pursuant to s 4.15(1)(e) of the EPA Act, as a matter of public interest, the Council's recent strategic planning position contained in its' Housing Strategy, the implementation of the Housing Strategy via a Planning Proposal that includes a reduction of the RLEP's minimum lot size development standard for the R2 Zone, and whether the public interest would be served by refusing an application that is consistent with these initiatives.
Under the provisions of s 3.9(1) of the EPA Act, Council prepared a Local Strategic Planning Statement, dated March 2020, referred to as "Vision 2020" (LSPS) and in doing so sought the written advice of the Greater Sydney Commission as required by s 3.9(3A) of the EPA Act. The LSPS was tendered in the proceedings (Ex J). A draft of the LSPS was the subject of a community consultation process undertaken in March and April 2019 (p 7) and again in October and November 2019, when it was exhibited along with Council's Draft Housing Strategy (p 8) before it was finalised and endorsed by Council. One of the planning priorities in the LSPS is to provide "diverse housing options close to transport, services and facilities". The first "action item" for this particular priority is to finalise the Council's Housing Strategy to "inform the review of planning controls to deliver the 6-10 year housing supply of 4,300 new dwellings by 2026" (p 27).
Council's Housing Strategy was tendered in the proceedings (Ex H) (the Housing Strategy). The Housing Strategy "establishes the strategic framework for residential growth within Randwick City to 2040" (p 4). It was prepared to respond to the LSPS and community feedback from the LSPS consultation, and the NSW Government's strategic planning policies including "A Metropolis of Three Cities - The Greater Sydney Region Plan (2018)" and the supporting "Eastern City District Plan" (2018), both prepared by the Greater Sydney Planning Commission.
The Housing Strategy was adopted by the Department on 23 June 2021, subject to the Council satisfying certain requirements (refer p 17 of the Department's "Gateway Determination Report - PP - 2021 - 4267, part of Ex M).
Section 3.1 of the Housing Strategy sets out the "Priorities and Objectives", including "HS Priority 2 Diverse Housing to meet the needs of our community" (HS Priority 2). It says at p 33: "Reducing the minimum subdivision lot size in the R2 Low Density Zone to 325m2 will create consistency between the planning controls for subdivision across the LGA, while ensuring low density growth is located in appropriate locations." At p 34 it lists 7 "Actions" for HS Priority 2, including Action 2.1 to "Review [R]LEP 2012 to amend subdivision provisions in the R2 Low Density Zone - short term". 'Short term' is defined at p 51 as 1-2 years.
Under section 3.2 of the Housing Strategy (entitled "Land Use Planning Approach") it says, at p 43: "The minimum lot size in the R2 low density residential zone will be decreased from 400m2 to 325m2. This will allow a parcel of land of at least 650m2 to subdivide into two separate dwellings, which may appear as a pair of semi-detached dwellings. … It is considered that providing for semi-detached dwellings better meets the community need than providing for dual occupancies which must remain on one title."
On 8 March 2021 a "General Report on a Comprehensive Planning Proposal", was reported to the Randwick Local Planning Panel (Planning Panel) who supported the strategic intent of the minimum lot size and dual occupancy provisions referred to in the report. The housing component of the Planning Proposal was considered by Council on 23 March 2021 (Council officers report at Annexure C of Ex 3). The proposal at that time included an intention to amend the minimum lot size map for all land zoned R2 Low Density Residential to 275m2 from the 325m2 referred to in the Housing Strategy, on the basis of submissions, received during the exhibition of the draft LSPS and Housing Strategy, that supported a further reduction to the minimum lot size.
At the time of the s 34AA hearing the Court was advised that the Council had on 1 June 2021, considered a report from the Director of City Planning (Report No. CP35/21) Subject "Randwick Comprehensive Planning Proposal - Minimum Lot Sizes and dual occupancy provisions in the R2 Low Density Zone" dated 1 June 2021 (Council Planning Report). A copy of the Council Planning Report was included as part of Annexure C in Exhibit 3. The Council resolved at that meeting, amongst other things to: "b) endorse that part of the Planning Proposal that amends the Randwick Local Environmental Plan 2021 in relation to minimum lot sizes for the R2 Low Density Residential Zone as set out below: Reducing the minimum lot size for all land zoned R2 Low Density Residential zone from 400m2 to 275m2 (with the exception of land within a Heritage Conservation Area) … d) forward that part of the Planning Proposal relating to minimum lot sizes and dual occupancy provisions in the R2 Low Density Residential zone to the Department of Planning Industry and Environment as delegate to the Minister for Planning for a 'Gateway Determination' under Section 3.34 of the Environmental Planning and Assessment Act 1979; e) endorse the exhibition of the Planning Proposal once Gateway Approval is provided (subject to any conditions); and f) resolve to commence the preparation of a new Randwick Comprehensive Development Control Plan to support the Planning Proposal."
In oral evidence Ms Askin advised that she had made inquiries with the Department, and that the Planning Proposal was "imminent for Gateway approval" which was expected between early August to early September 2021.
On 19 September 2021 the Applicant filed a Notice of Motion and supporting Affidavit of Mr Briggs seeking orders to reopen the matter. On 29 September 2021 I heard from the parties on the Notice of Motion and granted leave to the Applicant to reopen the proceedings to adduce the additional evidence that is at Annexures 'A', 'B' and 'C' of the affidavit of Damien Gerard Briggs sworn on 19 September 2021. That "additional evidence" became Exhibit M in the proceedings, and I heard oral submissions on that evidence.
The evidence in Exhibit M relates to the status of the Planning Proposal submitted to the Department. It comprises three documents: 1. a copy of the Department's "Gateway Determination to the Planning Proposal for a comprehensive review of the Randwick LEP 2012" dated 12 September 2021 (Gateway Determination) (Annexure A of the Affidavit), 2. a copy of the Department's "Gateway Determination Report - PP - 2021 - 4267", dated September 2021 (Gateway Determination Report); and 3. a copy of a letter from the Department to Council dated 12 September 2021 (Department's Gateway Letter) regarding the Planning Proposal and the Department's Gateway Determination.
The Gateway Determination Report confirms in the table at p 2 that the minimum subdivision lot size for all residential development (including attached dual occupancies) in the R2 Zone is proposed to change from 400m2 to 275m2.
The Gateway Determination includes a number of conditions requiring revisions prior to public exhibition and prior to finalisation of the amendments to the RLEP proposed in the Planning Proposal. It also requires consultation with a number of public authorities or organisations and that the Planning Proposal be exhibited within 2 months of the date of the Gateway Determination, reported to Council within 9 months and finalised within 12 months. No revisions to the minimum lot size in the R2 Zone were required by the Gateway Determination.
Based on the evidence (attachments to the Amended Clause 4.6 Request and in Exhibit M) it is clear that: 1. the Council has endorsed, in its Randwick Comprehensive Planning Proposal, a reduction in the minimum lot size for subdivision in the R2 Zone from 400m2 to 275m2, as part of the implementation of its Housing Strategy, 2. the Housing Strategy was the subject of community consultation, which supported the reduction in minimum lot sizes, 3. the Housing Strategy has been approved by the Department due, in part, to its consistency with State and Metropolitan planning policies and the Eastern District Plan, and 4. the Randwick Comprehensive Planning Proposal has received Gateway approval, subject to conditions, and is to be exhibited shortly in accordance with the Gateway Determination.
The proposed development would result in lot sizes well in excess of the minimum lot sizes proposed in the Housing Strategy and the Planning Proposal, which are supported by the Department as consistent with the relevant state and regional planning initiatives. The proposed development does not, therefore, raise any matters of significance for state or regional planning and the public interest would not be served by refusal of the application.
As referred to earlier in this judgment, the Court is able to grant consent without the concurrence of the Planning Secretary pursuant to s 8.14(3) of the EPA Act to the variation of the development standard, but should take into account the matters in cl 4.6(5) of the RLEP. In this case, the proposal is a local development with a minor non-compliance and adequately justified breach of the building height. In the circumstances of this case, for the reasons set out in pars 88 and 89 of this judgment, the contravention of cl 4.1 of the RLEP does not raise any matter of significance for state or regional planning and there is no public benefit in maintaining the standard.

Conditions

Council tendered its draft conditions of consent as Exhibit 4. The Applicant's response to those conditions is found in Exhibit B, in which the Applicant contested the Council's draft Conditions 7 and 9, and the "Advisory Notes".
Council's draft Conditions 7 and 9 refer to the Original Approval (DA/709/2018). I agree with the Applicant's submission in Ex B (with respect to Condition 9) that the determination in this matter needs to stand alone. It is not appropriate, as Condition 9 purports to do, to require all conditions of the Original Approval to be complied with prior to release of the subdivision plans/certificates, particularly when, as I understand in this case, an occupation certificate has already been issued for that development. The court was not presented with any evidence of, nor even a suggestion that, the conditions of consent had not been complied with, and even if that were the case it would need to be remedied through a different legal process than this Class 1 application. I therefore find that Council's draft Condition 9 be deleted.
Council's draft Condition 7 refers to the placing of a "restriction on the use of land" and "positive covenant" relating to the on-site detention system, as had been required as a condition of consent in the Original Approval. Council's draft Condition 7 includes a requirement for evidence to be provided to Council that this had been done. In Ex B the Applicant submitted that this had been done. In any event I concur that it is necessary to ensure that the same terms are applied to the new lots. Bearing in mind the need for this consent to 'stand alone,' I agree with the Applicant's amendment to draft Condition 7.
The Applicant also proposed the deletion of Council's draft "Advisory Notes" at the end of its draft conditions of consent on the basis that "Advisory Notes are not conditions of consent". Whilst this statement may be correct, advisory notes are commonly applied at the end of conditions of development consent, and in this case they are clearly labelled as such. I have read the "Advisory Notes" and while not strictly necessary they do not derogate from the consent and I will allow them to remain.

Decision

Having considered all of the evidence, including that of the expert town planners, and the submissions of the parties, and taken into account the relevant matters for consideration under s 4.15 of the EPA Act, I am satisfied for the reasons set out in this judgment that the appeal should be upheld.

Orders

The orders of the Court are: 1. The Applicant's amended written request under cl 4.6 of the Randwick Local Environmental Plan 2012 (RLEP) prepared by Jennie Askin of aSquare Planning Pty Ltd dated 16 July 2021 seeking a variation of the minimum lot size development standard at cl 4.1 of the RLEP is upheld. 2. The appeal is upheld. 3. Development Consent is granted to Development Application DA/45/2021 for Torrens title subdivision of an approved dual occupancy into two lots at 31 Windsor Street, Matraville subject to conditions contained in Annexure 'A'. 4. The exhibits are returned with the exception of Exhibits B, E, G, K, M and 3. ………………………….

Acting Commissioner of the Court Annexure A (153189, 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: 22 February 2022

(2018) 236 LGERA 256

(2007) 156 LGERA 446

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Cases Cited (8)