Stewart v Sutherland Shire Council

Land and Environment Court (NSW)|2022-09-05

Judgment

COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act, 1979 (EPA act) by Andrew Stewart the (Applicant) against the actual refusal of the Development Application No. 20/0763. The application is for the demolition of the existing dwelling and associated structures and the construction of a two-storey attached dual occupancy development, two swimming pools, landscaping, and other associated works.
The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 5 September 2022. The parties failed to reach an agreement during the conciliation process that would be acceptable to the parties. Accordingly, the conciliation was terminated, and the matter proceeded to hearing on the same day.
At the hearing, the parties agreed that there was only one issue that prevented the parties reaching an agreement. This was a jurisdictional issue as to whether the proposal, as a dual occupancy development, was permissible with consent or the proposal was prohibited on the basis of being deficient in the required site area of 700m².
I have concluded, based on the reasons set out below, that the use is permissible, and the appeal should be upheld. The parties advised the Court that the merit issues are uncontested. I am still required to form my own opinion, both on merit and on jurisdictional grounds, that the appeal can be upheld. I have undertaken that process and this judgment outlines the reasons why I have come to that conclusion.

Is the Development prohibited?

The site is zoned C4 - Environmental Living pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015). Dual Occupancy is a defined land-use contained within the Dictionary forming part of the SSLEP 2015. Dual Occupancy is defined as: dual occupancy means a dual occupancy (attached) or a dual occupancy (detached). Note - Dual occupancies are a type of residential accommodation - see the definition of that term in this Dictionary. dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling. Note - Dual occupancies (attached) are a type of dual occupancy - see the definition of that term in this Dictionary.
The Land-Use Table contained within the SSLEP 2015 sets out the objectives for C4 Environmental Living Zone; development permitted without consent; development permitted with consent; and that development which is prohibited. The SSLEP 2015 land use table sets out a limited range of development that is permitted with consent. There is a short list of development that is listed as prohibited along with "any other development not specified in item 2 or 3 (being the permitted uses)". Dual Occupancy development is not made permissible by the land use table.
Schedule 1 - Additional Permitted Uses, provides a series of circumstances where development is permissible. Clause 28 of the SSLEP 2015, in particular, is relevant to this matter and reads as follows: 28 Use of certain land in Zone C4 Environmental Living (1) This clause applies to land shown edged heavy red and identified as "A" on the Additional Permitted Uses Map. (2) Development for the purpose of dual occupancies is permissible with development consent, but only if the area of the lot is equal to or greater than 700 square metres.
The parties have both referenced various judgments they consider relevant to their position. One of these references is the application of Giles JA's test in the Court of Appeal decision Strathfield Municipal Council v Poynting (2001) 116 LGERA 319. The parties also consider the relevance of the Court of Appeal decision in Agostino v Penrith City Council [2010 NSWCA 20; (2010) 172 LGERA 380 ("Agostino").
As noted, the proposed development does not provide the site area required by cl 28 of the SSLEP 2015. As a result, a jurisdictional discussion has arisen involving two possible paths by which to determine this matter. The first path is that the development is prohibited, as the numerical component of the clause does not meet the definition of a Development Standard, and therefore cannot be varied. The second path is that there is a separation between the definition of Dual Occupancy, as a land use, from the numerical component, which is a site area requirement, the latter which would then constitute a Development Standard. The second path then allows the consideration of a written request to vary that Development Standard pursuant to cl 4.6 of the SSLEP 2015.
In the circumstances where cl 28 of the SSLEP 2015 is a definition of a development type, the Respondent says the numeric requirement cannot be varied. It is the Respondents position that the application must fail as the required site area is not achieved.
The definition of a Development Standard is found in cl 1.4 Definitions, EPA Act. The definition, in part, is as follows: development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of - (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b)….
In the Agostino matter, the majority determined that the full description of a land use, a "fruit and vegetable store with a maximum floor area of 150sqm", was a characterisation of a land use. As a consequence, the numerical component, which was inherent in the land use characterisation, was not a Development Standard. The applicant's submissions note the key distinction in Agostini that the land use, a "fruit and vegetable store", is not elsewhere defined in the relevant planning instrument. The words in the Schedule, in the Agostini matter, were seeking to define that use by including a numerical limit on floor area as a key component.
The Applicant says that as "Dual Occupancy" is a separately defined form of development, which appears in several locations throughout the SSLEP 2015, that the numerical component is "an aspect" of that land use and not inherently part of the definition. The Applicant uses the content of cl 4.1E of the SSLEP 2015, which sets a different lot size of 600m² for Dual Occupancy development, to further support this distinction. This is on the basis that Dual Occupancy development is permissible in various circumstances, but these circumstances are controlled numerically.
The Applicant also quotes North Sydney Council v Mayoh (no.2) (1990) 71 LGRA 222. The Applicant says that as a matter of statutory definition, lot size cannot be part of the definition of a Dual Occupancy but rather an aspect of that development.
This position stands apart from that of the Respondent. The Respondent cites examples, such as the decision of the Court of Appeal in Woollahra Municipal Council v Carr (1985) 62 LGRA 263 and Agostini. The Respondent sees these matters as being of a similar outcome and as being supportive of their position that the numerical component of the clause is an inherent part of the definition of the development and therefore the numerical component cannot be varied.
The Applicant highlights an historical amendment of the SSLEP 2015 to support their position. Clause 28, in a previous form, made no reference to a dimensional criteria of lot area. The section requiring a minimum lot area was inserted as an amendment, as part of several amendments, to the SSLEP in 2015. These amendments to the SSLEP 2015, in their simplest form, added a numerical constraint to Dual Occupancies (and Medium Density Housing). The Applicant's position is that this adds weight to the numerical component being a Development Standard as it was an afterthought to the permissibility of Dual Occupancies more broadly (when unfettered by site area).
I agree with the Applicant's summation of the facts in Agostini, that is, that whilst the definition of the use may appear to have two components, that the store floor area limit is a key component of the definition of a fruit and vegetable store. As a result, I agree that cl 28 provides a different scenario wherein dual occupancy is already defined, and importantly, is not further defined by reference to a minimum lot area. The numerical requirements standalone from the definition of the development.
As a result, and because of succinct numerical constraint to an already defined development type, I agree with the applicant that cl 28 does not seek to define the development but merely constrain it numerically. This allows the use of cl 4.6 to vary the Development Standard component, for minimum site area, rather than prohibit the development because the site area is not achieved.
The parties have agreed that if cl 28 does contain a Development Standard and is not a prohibition, the merits aspects of the application, including the cl 4.6 written request, are uncontested. It would then remain for the Court to reach the required levels of satisfaction, both in terms of jurisdiction and merit, if the appeal is to be upheld.

Is a variation to the development standard for site area acceptable?

The proposal falls short of the 700m² site area required for Dual Occupancy development, in the C4 Environmental Zone, by 8.3m² (1.2%). The written request seeking a variation to the development standard says that the site area is 691.7m² (Exhibit D - Clause 4.6 Written Request).
The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has addressed the matters required to be addressed by cl 4.6(3) of the SSLEP 2015 and that the proposed development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, as outlined in cl 4.6(4), as follows: (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

Has the applicant's written request addressed the required matters?

The applicant's written request, seeking to justify the contravention of a Development Standard, must address the matters required to be demonstrated by cl 4.6(3) of the SSLEP 2015, as follows: (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
Preston CJ summarises the ways in which an applicant might demonstrate that adherence to a Development Standard is unreasonable or unnecessary in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. The applicant's written request justifies the contravention of the site area development standard by utilising the first method outlined in that summary, that is, by demonstrating that the underlying objectives of the Development Standard are met.
The written request notes that there are no specific objectives relating to cl 28 of Sch 1 of the SSLEP 2015 but notes that there are objectives relating to density of Dual Occupancy development and the varying lot sizes that accommodate Dual Occupancies in different zones. The written request notes that the proposal, as measured by building height, storey height, landscaped area, setback, and Floor Space Ratio is consistent with the planning controls for a Dual Occupancy in this zone. The applicant says that the variation to the development standard has little, if any, impact on the planned residential density of development in the C4 Environmental Living Zone.

Is the proposal in the public interest because it is consistent with the objectives of the contravened development standard and the zone?

The written request also sets out the objectives for the C4 Environmental Living Zone in order to demonstrate that the proposal is in the public interest by being consistent with the zone objectives. The written request also discusses the underlying objectives, related to density, for the Development Standard. The written request notes the provision of landscaping to embellish the scenic qualities of the site, notes the compliance with built form planning controls that limit bulk and scale and the absence of any view impacts resulting from the development. It is these outcomes that underpin the objectives and it is for these reasons that I am satisfied that the written request is well founded and that the proposed development is in the public interest. As a result, I am satisfied that the written request to vary the development standard can be upheld.

Are there any merit considerations relevant to the decision?

The Court was provided with expert evidence in the form of a Joint Planning Report (Exhibit 3). The report was prepared by Ms J Horder (Applicant) and Mr G Apps (Respondent). The Joint Report considered the contentions before the Court, including the variation to the Development Standard. As part of the Joint Report process, greater clarity was provided on a number of matters which resulted in agreement, between the planners, that the merit based contentions were resolved. This includes agreement that the merit consideration relating to height, floor space, views and urban design were no longer contested.
Contention 1 and 2, which related to Height of Building and Floor Space Ratio compliance, were resolved through the provision of additional material, to demonstrate that the proposal was not in contravention of the Development Standards for Height of Buildings or Floor Space Ratio. As a result of demonstrating compliance with the control, these contentions were resolved. No issues arise that would warrant further consideration by me on these contentions.
The remaining contentions related to additional information and concerns around traffic noise, cut and fill and landscaping. The planners agree that the minor adjustments to levels, reduction of wall lengths and the provision of additional landscaping have resolved these contentions. It is because of these outcomes that I am satisfied that there are no issues arising from these contentions that would prevent the granting of Development Consent to the proposal, subject to appropriate conditions.

What are the remaining jurisdictional matters requiring consideration?

SSLEP 2015, cl 6.1 - Acid Sulphate Soils requires consideration as to the status of Acid Sulfate Soils on the site. The site is nominated as Class 5 Acid Sulfate Soils. As a result, I am satisfied that the required consideration has been given to the matters in cl 6.1 to the extent they are applicable to this site.
SSLEP 2015, cl 6.2 - Earthworks, requires consideration of various matters prior to the granting of development consent involving earthworks. Land Form and Cut were the subject of a contention in these proceedings and therefore subject to specific considerations. The planners agreed outcomes, that resulted in adjusted levels, resolving concerns around the extent of cut and fill. As a result, I am satisfied, that the discussion between the experts, the material with the application and the proposed conditions of Development Consent (in Annexure A) address the matters listed in cl 6.2.
SSLEP 2015, cl 6.4 - Stormwater Management, has been considered by the applicant and this is reflected in the provision of storm water plans prepared by Engineering Studio and which have been considered by the Council. The proposed conditions of Development Consent include conditions requiring the work being in accordance with the approved plans. As a result, I am satisfied that the required matters for consideration and satisfaction in cl 6.4 have been met.
The SSLEP 2015 sets out, at cll 6.16 and 6.17, a variety of urban design considerations that must be considered in deciding whether to grant development consent. The controls were the subject of Contention 4, Urban Design, and therefore discussed between the planning experts in the joint report. They have agreed that the minor changes made to the proposal have resulted in the proposal achieving the required urban design outcomes. As a result of their deliberations, I am satisfied that these broader controls have been addressed by the applicant and considered by the respondent. I agree with the parties' position that the required matters have been considered because of the reasons outlined above.
The applicant has provided the requisite certificate pursuant to State Environmental Planning Policy (BASIX) 2004.
Consideration has been given to the potential contamination of the site pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards) applies to the site. The current use of the property for residential purposes makes it unlikely that the continued use of the property for residential purposes poses a risk. I also note that the proposal requires removal of fill from the site and that there are appropriate conditions, in Annexure A, that deal with the removal of material from the site.
Consideration has been given to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The removals of trees and the provision of replacement trees were part of a contention between the parties that was resolved after considering revisions to landscaping. This includes the inclusion of conditions of Development Consent seeking appropriate replacement trees as part of the development proposal. As a result of these deliberations and outcomes, I am satisfied that the Biodiversity and Conservation SEPP requirements have been met.
Consideration has been given to State Environmental Planning Policy (Transport and Infrastructure SEPP) 2021(Transport SEPP). Woodlands Road is not a classified road, but the site is in proximity to Taren Point Road. The proposed conditions of Development Consent include conditions regarding acoustic treatments (to ensure appropriate levels of amenity). As a result of these outcomes, I am satisfied that the required considerations have been undertaken in respect to the Transport SEPP.

Conclusion

As a result of the above deliberations, I have reached the conclusion that the appeal be upheld and that Development Consent, pursuant to cl 4.15 of the EPA Act, be granted subject to the conditions in Annexure A.

Orders

The Court orders that: 1. The applicants written request, pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, seeking a variation to the Development Standard for site area for a Dual Occupancy development, is upheld. 2. The Appeal is upheld. 3. The Development Application No.20/0763 seeking Development Consent for the demolition of the existing dwelling and associated structures and then the construction of a two-storey attached dual occupancy development to be undertaken at 23 Woodlands Road, Taren Point, legally described as Lot 1 in DP 511429, is determined by the grant of Development Consent subject to the conditions set out in Annexure "A". 4. The exhibits are to be returned except for Exhibits A, D and 1. ………………….. S Harding AC Acting Commissioner of the Court

Annexure A 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: 27 October 2022

(2010) 172 LGERA 380

(2001) 116 LGERA 319

(2007) 156 LGERA 446

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Judgment (11 paragraphs)

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