Succar v Bankstown City Council

Land and Environment Court (NSW)|2012-08-08

Mr M Bonanno (Respondent) G & S Law Group (Applicant)

Lindsay Taylor Lawyers (Respondent) File Number(s): 10226 of 2012

Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Bankstown City Council of a development application (DA 348/2011) for the demolition of existing structures and the construction of four infill - dwelling houses at 30 Brennan Street, Yagoona.

The proposal 6The proposal is to demolish the existing structures and construct four twostorey infill dwellings or villa houses. Dwelling 1 is accessed from the street frontage and the remaining three dwellings are accessed from a driveway running along the southern boundary of the site. Each dwelling has a single garage. 7Dwellings 1 and 2 have living areas located at ground floor and two bedrooms and a study located at the first floor level. Dwellings 3 and 4 have living areas, a bedroom and a study located at the ground floor and a bedroom and an ensuite located in a loft area. 8The building is to be finished in face brick with a tiled roof pitched at 25 and 35 degrees. A brick fence is proposed to be located on the front property boundary and has a height of .9 m.

Permissibility 9The application was lodged with the Council under State Environmental Planning Policy (Affordable Rental Housing) 2009 (AH SEPP) on 27 April 2011. After lodgment, AH SEPP was amended. The amendments remove the equivalent land zone test in cl 10(1)(a) and replace it with the requirement for a development to be permissible with consent under the relevant planning instrument. 10As this application falls within the savings and transitional provisions in cll 54A(2) and (3) of State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011 it may be determined under the AH SEPP or the amended AH SEPP. In this case the parties agree that the most appropriate planning instrument to assess the proposal is the amended AH SEPP. They also agree that the development satisfies cl 10(a)(1) of the amended AH SEPP because the use is permissible, with consent, as villa housing within the 2(a) Residential zone under the Bankstown Local Environmental Plan 2001(LEP). 11For the above reasons, the amended AH SEPP permits this development subject to development consent.

The Planning Framework - the weight to be given to other planning instruments and the amended AH SEPP? 12Clause 8 of the AH SEPP states: 8 Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency. 13Adopting the plain meaning of "inconsistency" in cl 8 it provides that if a planning provision is inconsistent with the AH SEPP then the provision in the Policy prevails: per Young J in Hastings Point Progress Association v Rosemount Estates Pty Ltd 168 LGERA 99 at p118 para 84 "If there is a situation where there is a "can do" under the SEPP - SL and a "can't do "under the local environmental plan then the SEPP - SL prevails": Dem (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187. 14However, where the AH SEPP is silent about certain matters, the parties have different views. The applicant submits cl 8 intends that the AH SEPP covers the field and that the LEP and DCP provisions cannot be used to fill in the void in order to justify a refusal of the application. Only when the AH SEPP invites the Court to take into consideration a matter such as the character of the local area under cl 16A does the applicant concede that the provisions of the LEP and DCP are relevant considerations under s 79C. However, that consideration does not extend to matters that are inconsistent with the AH SEPP such as the core residential development standards in cl 46 of the LEP. In this case, the applicant contends that I should place no weight on provisions in cl 46 because the AH SEPP displaces those provisions. 15The Council, however, submits that the LEP and the DCP and any other relevant planning instrument should be taken into account in my assessment under s 79C of the Act. This includes the core residential development standards in cl 46 of the LEP or building controls for villa houses on this site, which inform the character of the local area under cl 16A. The Council contends that because the AH SEPP requires that I consider the design's compatibility with the character of the local area there is no inconsistency in taking cl 46 into account for the purposes of cl 16A: Hastings per J at p 120 para 96.

Finding 16The AH SEPP is not a code. It is a Policy which aims to provide a consistent planning regime for the provision of affordable housing: cl 3(a); and, to facilitate the effective delivery of new affordable housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non discretionary development standards: cl 3(b). It sets out non-discretionary development standards in cl 14 and design considerations in cll 15(1) and 16 and 16 A. 17The fact that the AH SEPP enlivens the power of a consent authority to determine a development application for affordable housing on land to which the AH SEPP applies does not mean that the power is to be exercised in only one way; the grant of a consent. The consent authority has a discretion, which must be exercised in accordance with the law and having regard to the merits of the application. In exercising the discretionary power in s 80(1) of the Act, the consent authority must consider the relevant matters in s 79C(1) and ss 79C(b) to (e) of the Act: Australian Lifestyles Corporation Pty Ltd v Wingecarribee Shire Council [2008] NSWLEC 284 per CJ Preston at paras [34] - [41]. Therefore, in my opinion all relevant planning instruments must be considered and in the event of an inconsistency cl 8 prescribes that the Policy is to prevail. 18This approach is consistent with the general principle discussed by the Court in GW Rothwell & Associates v North Sydney Council [2000] NSWLWC 116 at [28] of trying to give effect to both provisions if possible: "There is a general reluctance by the courts to find that there is an inconsistency between two statutory provisions if both provisions can be given effect."

Evidence 19The hearing of this matter commenced with a view of the site and the local area as defined by each party. At that time I also heard from several objectors to the application. Many of them expressed a concern about the bulk and scale of the built form along the length of the site. They were of the opinion that the development is out of character with the local area and an overdevelopment of the site. The immediate neighbors believe the height of the proposal will impact on their amenity and result in a loss of visual privacy and solar access. They were particularly concerned about the number of parking spaces provided and the increased traffic and street parking likely to be generated by the proposal. 20Expert town planning evidence was received from Mr Goodyer on behalf of the council and Mr Nino on behalf of the applicant. Their joint report is exhibit 3 in the proceedings. 21The Council's amended statement of facts and contentions dated 21 June 2012 and the applicant's statement in reply set out the background facts and statutory controls and the original contentions. Many of the original contentions, however, were resolved by the amendments proposed by the applicant during the hearing. As a result, the hearing focused on the issues raised by cl16A of the AH SEPP; consideration of the design's compatibility with the character of the local area.

Clause 16A 22Clause 16A of the AH SEPP provides that the consent authority (the Court) cannot grant development consent to a development, unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The character test in cl 16A, according to Mr Goodyer is to ensure that developments proposed under the AH SEPP are consistent with the design of the local area. 23In my consideration under cl 16A, the parties agree that I must have regard to any relevant matter under s 79C of the Act subject to cl 8 of the AH SEPP. As mentioned the Council contends this includes a consideration of the core residential standards set out in cl 46 of the LEP. While the applicant contends that the only relevant design controls are in the AH SEPP and that I should not have regard to the core residential standards in cl 46 of the LEP. 24I believe I need to consider the core residential standards in cl 46 of the LEP because they inform the existing character of the local area, which is relevant under cl 16A of the AH SEPP. I accept that this development does not need to comply with the standards in cl 46 to the extent that they are inconsistent with the Policy.

What is the local area for the purposes of cl 16A? 25The view confirmed Mr Goodyer's assessment that the local area is made up of the visual catchment. It takes in both sides of Brennan Street from Ward Street to Buist Street and extends through to the neighbouring streets, Smith Street and Rose Street. I accept the council's submission that it is this area that needs to be characterised for the purposes of cl 16A of the AH SEPP. 26I do not agree with Mr Nino that the local area extends beyond the visual catchment and includes the area on the opposite side of the Hume Highway or the whole local government area of Yagoona. Mr Nino offers no evidence for why his wider catchment should be considered, apart from mentioning that the only other villa style development is in Baird Street, at the very edge of his defined area.

What is the current character of the land uses in the visual catchment? 27At the view I observed that the underlying subdivision pattern of the local area consists of regular allotments of similar dimension to the applicant's site. Most allotments have a frontage of less than 20 m and, therefore, they do not meet the standard in cl 46(3) for villa development. Mr Goodyer's evidence is that this explains why there are no villa developments (even in Mr Nino's wider defined local area), apart from one development, which came about as a result of a consolidation at 15 Baird Street, Yagoona. The lots are simply not wide enough for villa housing under the LEP without consolidation. 28Mr Goodyer categorises the local area as including older style singlestorey dwelling houses and larger scale newer two-storey dwelling houses. Within Mr Goodyer's narrower catchment there are no other villa developments. 29I accept Mr Goodyer's evidence about the existing built form and character of the development in the local area. It is consistent with what I observed at the view. I cannot accept Mr Nino's wider area, which includes a variety of singlestorey and two-storey dwellings, dual occupancies, battle-axe dwellings and some villa homes as being an accurate description of the character of the local area under cl 16A. 30Mr Goodyer describes the proposal as having a "gun barrel" driveway extending for 45 m along the western boundary to the northern boundary. He identifies this as uncharacteristic of the area. Again I did not observe this style of driveway to be characteristic of the local area. Mr Goodyer's evidence is that the proposal is inconsistent with the prevailing character when one views it from neighbouring properties. The proposal disrupts the pattern of open rear yards and imposes upon the neighbouring properties. It causes impacts in terms of loss of visual amenity due to the bulk and scale of the building and a loss of "openness" for their rear yards. 31The character of the area is a "building zone" to the front, and a "green zone" to the rear. The green zone, an area of open backyard or private open space, separates and relieves the visual impact of the construction in the building zone. This development does not offer that open backyard separation or relief. 32The proposed construction will present an unrelieved building from 5.5 m from the street frontage to 3 m to the rear boundary. This will create an unbroken development 44.9 m in length down the northern side of the property and even after modification the proposal presents as a two-storey façade along its length.

Building controls informing the character 33Both experts referred to the planning principles in Project Venture Developments v Pittwater Council [2005] NSWLEC 191. At [26] Senior Commissioner Roseth stated: For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. 34Clause 46 of the LEP contains a core residential development standard designed to dissuade certain types of development. The clause states: (1) The objectives of the standards in this clause are: (a) where an existing allotment is inadequate in terms of its area or width, to require the consolidation of 2 or more single residential allotments for villa development or residential flat buildings, to achieve the other objectives in this subclause, and (b) to ensure that allotments are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and courtyards, driveways, vehicle manoeuvring areas and the like, (emphasis added); and (c) to ensure that the site of a proposed villa development is of adequate area and width to enable that development to be arranged without long lengths of walls in a straight line, (emphasis added) and (d) to limit the potential for villa, rowhouse, terrace house and dual occupancy development in Zone 2 (a), (emphasis added) and (e) to ensure that dual occupancy, rowhouse or villa development in Zone 2(a) retains the general low-density scale and character of existing single dwelling development. ... (3) The consent authority is not to grant consent to development for the purpose of villas on an allotment of land within Zone 2 (a) or 2 (b) unless: (a) the allotment has an area of 1,200 square metres or more, and (b) the allotment is at least 20 metres wide at the front building line, and (c) the site area per villa (excluding the area of access handles or rights of way for access) is not less than 300 square metres. 35The experts disagree about whether the proposal adequately responds to the essential elements that make up the character of the local area. However, the view confirmed the prevailing character of the local area (within the visual catchment) is of single and two-storey dwelling houses, with some dual occupancies, and largely open backyards in a "green zone" separated from the building zone. Mr Nino relies on other villas that are not in the visual catchment to justify this type of development as characteristic of the local area. These properties are at 15 to 17 Baird Street and 42 to 44 Rookwood Road Yagoona outside the visual catchment. Both involve a consolidation of two lots. 36Mr Goodyer's evidence is that the character of the area is informed by the underlying subdivision pattern, which consists of regular rectangular allotments similar in dimensions to the applicant's lot. His evidence is that the proposal attempts to create a villa style development in an area that has consistently been developed in accordance with standards that preserve its character. 37Mr Goodyer's evidence is that the essential elements are predominately a built form located in the front zone of the lot with an area of open space to the rear. Some buildings have dwellings at the rear of the block but these are secondary structures separated by a green zone. In Mr Goodyer's assessment the proposal is not compatible with the character of the local area, because the proposal provides an area per dwelling too small under LEP cl 46(3)(c) and AH SEPP cl 14(2)(b)(iv); the setbacks are too small under the DCP; the private open space is inadequate; the driveways, even on the calculation of the applicant's own traffic engineer, do not meet the Australian Standard; and the proposal involves approval of an unbroken wall, two storeys in height running for 45 m along the northern boundary of the property, in contravention of the objective in cl 46(1)(c) of LEP. 38The Council submits that while villa housing is permissible development within the 2(a) Residential zoning the design is subject to the constraints in cl 46 of the LEP. In short, this control informs the existing and desired future character of the area, because there is no proposal to amend or vary the existing controls. For the foreseeable future, therefore, the character of the area will continue to be informed by the existing planning controls, which actively dissuade the proposed style of villa development unless the provisions of cl 46 are met. 39The AH SEPP overrides the planning controls to the extent of any inconsistency but this is subject to cl16A. In this case, the applicant submits that the proper outcome to achieve the aims of the AH SEPP and the Metropolitan Plan for Sydney 2036 is to approve the application. While a finding that the design is incompatible with the character of the local area does not require a refusal of an application in this case it must. 40Based on the evidence, the development does not maintain the essential elements that make up the character of the local area. In particular, there is no separation between the built form or any characteristic open space or green zone within the rear of the site. After a consideration under cl16A I find that the design is not compatible with the character of the local area, and, for the reasons outlined above, I have decided that development consent should be refused. Conclusion 41I make the following orders: (1)The appeal is dismissed. (2)Development application (DA 348/201) for the demolition of existing structures and the construction of 4 infill dwelling houses at 30 Brennan Street, Yagoona is refused. (3)The exhibits are returned. Susan Dixon Commissioner of the Court 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: 11 September 2012

(2004) 136 LGERA 187

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