TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council - [2017] NSWLEC 144 - NSWLEC 2017 case summary — Zoe

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TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council

[2017] NSWLEC 144

Land and Environment Court (NSW)|2017-09-27|Before: Robson J, Mr P

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-09-27

Before

Robson J, Mr P

Catchwords

APPEAL - application for a retention of an existing residential flat building and construction of nine houses on three lots - application refused by Council

Source

Original judgment source is linked above.

Catchwords

APPEAL - application for a retention of an existing residential flat building and construction of nine houses on three lots - application refused by Council

Judgment (26 paragraphs)

[1]

Nature of case and outcome

This Class 1 appeal concerns the refusal by the respondent, Canterbury-Bankstown Council ('Council'), of a development application lodged on 4 April 2016 by the applicant, TK Commercial Property Holdings Pty Ltd, for development consent for a "multi dwelling housing" proposal involving the construction of 9 townhouses and the retention of an existing residential flat building.
The proposed development is on Lot 1 DP85726, Lot 1 DP85727 and Lot 1 DP85725 with respective street addresses of 18, 20 and 22 Northcote Street, Canterbury ('the site'). The three allotments which are to be consolidated have a total land size of 2,750m². The site is rectangular and has a frontage to Northcote Street of approximately 42.5m, a rear dimension of approximately 42m and side boundaries of approximately 65m.
Council issued a Notice of Determination refusing consent on 24 October 2016. These proceedings were commenced on 11 January 2017 and proceeded to hearing on 26 and 27 September 2017. The applicant was represented by Ms S Duggan of senior counsel and the respondent was represented by Mr P M Jackson.
In summary, I find that although the proposal is not prohibited, as contended by Council, in its present configuration there is a breach of a development standard being the floor space ratio standard in cl 4.4 of the Canterbury Local Environmental Plan 2012 ('Canterbury LEP') and that the applicant's written request for dispensation pursuant to cl 4.6 of the Canterbury LEP is not well-founded. For reasons that follow, I have determined that development consent sought by the applicant should be refused and the appeal dismissed.

[2]

Background

The proposal involves development on all three allotments, 18, 20 and 22 and seeks consolidation of these three sites. The works on allotments 20 and 22 include the demolition of two existing single-storey brick dwellings and associated structures and the construction of 9 townhouses. Additionally, the proposal provides for integrated basement car parking, landscaping, and a garbage disposal area, as well as communal open space and a separate private open space for each of the townhouses.
The works proposed on allotment 18 include, relevantly, the retention of an existing residential flat building with some limited improvements, including some excavation for storage at the rear of the site and the creation of pathways, ramps and drainage infrastructure.
The site is located in a primarily residential area on the eastern side of Northcote Street, and has a fall of approximately 3.5m in an easterly direction towards the rear. The residential area comprises a variety of building types, including one and two-storey dwellings and older style two-storey residential flat buildings. To the north of the site are two two-storey residential flat buildings of a style and typology not dissimilar to the building presently on allotment 18. To the south of the site are single-storey dwellings.
As noted above, the development application for the proposal was lodged on 4 April 2016, and upon its receipt was publicly advertised, with Council receiving two submissions in relation to the proposal. The development was readvertised in September 2016 and three additional submissions were received (two being from the same households as the earlier submissions). The development application was refused by Council on 24 October 2016, and on 11 January 2017 the applicant commenced proceedings in this Court.
On 17 May 2017, the Court granted leave for the applicant to rely upon amended architectural plans which sought to address a number of concerns raised by Council. With leave of the Court and by consent, further amended plans (which addressed matters canvassed during expert joint conferencing prior to hearing) were tendered during the hearing and became Exhibit E. These are now the plans for which consent is sought.
A significant aspect of the proposal is that approximately one third of the site, being the allotment at 18 Northcote Street, is occupied by a two-storey brick residential flat building with a pitched and tiled roof, consisting of six units each having two bedrooms and at-grade parking at the rear ('RFB'). The RFB was constructed in the mid-1960s in accordance with an approval given on 11 July 1963 under the County of Cumberland Planning Scheme Ordinance ('1963 Consent'). Subject to certain upgrading works including excavation at the rear of the allotment, the proposal envisages that the RFB will remain.
Pursuant to the Canterbury LEP the site is zoned R3 Medium Density Residential ('R3 Zone'). Within that zone "multi dwelling housing" is permissible with consent however residential flat buildings such as the RFB are prohibited. It has been contended by the applicant that the RFB has been used continuously pursuant to the 1963 Consent since about 1963, and whether the RFB enjoys existing use rights is an issue in the proceedings.
Relevantly cl 4.4 of the Canterbury LEP provides a development standard applicable to the site providing that the maximum floor space ratio ('FSR') allowed is 0.5:1. The Canterbury Development Control Plan 2012 ('CDCP') also contains relevant controls relating to landscaping, deep soil and setback. I note that the CDCP was amended on 30 January 2017, however, as agreed by the town planning experts in their evidence summarised below, the amended CDCP contains savings provision A1.9, and as such is not a relevant matter for consideration.
As discussed below, while Council's primary contention is that the proposal is prohibited, in the alternative Council contends that there is an exceedance of the FSR control, and in such circumstances a written request under cl 4.6 of the Canterbury LEP is required such that an exception to the development standard may be granted. Relevantly the applicant, whilst not accepting that such a request is required, has prepared a written request under cl 4.6, which is before the Court.

[3]

Relevant statutory provisions

The Council contends that the proposal is prohibited, and an issue in the proceedings is whether or not the RFB enjoys existing use rights. Accordingly it is useful to set out those provisions of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') that provide for existing use rights.
The term "existing use" is defined in s 106, which, as noted in Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 194; (2012) 193 LGERA 151 ('Cracknell') at [39] and BYT Nominees Pty Ltd v North Sydney Council [2008] NSWLEC 164; (2008) 161 LGERA 77 ('BYT Nominees') at [23], is definitional only. The section provides: 106 Definition of "existing use" In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.
Once a development has been identified as enjoying existing use as defined in s 106 of the EPA Act, the operative provisions stipulating the rights attaching to such existing use are contained in ss 107-109B of the EPA Act, with ss 107-108 and 109B being of particular relevance to these proceedings: 107 Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. 108 Regulations respecting existing use (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to: (a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and (b) the change of an existing use to another use, and (c) the enlargement or expansion or intensification of an existing use. (d) (Repealed) (2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. ... 109B Saving of effect of existing consents (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. (3) This section is taken to have commenced on the commencement of this Act.
The provisions referred to in s 108 of the EPA Act are contained in Part 5 of the Environmental Planning and Assessment Regulation 2000 ('EPA Regulations'), which provide for the evolution of an existing use through development consent in certain circumstances: 41 Certain development allowed (1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or (e) if it is a commercial use - be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or (f) if it is a light industrial use - be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act). ... 42 Development consent required for enlargement, expansion and intensification of existing uses (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) must be for the existing use and for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date. 43 Development consent required for alteration or extension of buildings and works (1) Development consent is required for any alteration or extension of a building or work used for an existing use. (2) The alteration or extension: (a) must be for the existing use of the building or work and for no other use, and (b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date. ...
As indicated by the above provisions, existing use rights are determined by reference to the "relevant date", which is defined in cl 39 of the EPA Regulations as follows: 39 Definitions In this Part: relevant date means: (a) in relation to an existing use referred to in section 106 (a) of the Act - the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force, or (b) in relation to an existing use referred to in section 106 (b) of the Act - the date when the building, work or land being used for the existing use was first erected, carried out or so used.
In circumstances where the Court is satisfied that the RFB does benefit from existing use rights and the proposal is accordingly not prohibited, Council contends that the proposal does not comply with the FSR control contained in the Canterbury LEP, which provides: 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to provide effective control over the bulk of future development, (b) to protect the environmental amenity and desired future character of an area, (c) to minimise adverse environmental impacts on adjoining properties and the public domain, (d) to optimise development density within easy walk of the railway stations and commercial centres. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. …
As noted above, the FSR for the site as stipulated in the Floor Space Ratio Map is 0.5:1. Relevantly, cl 4.5 of the Canterbury LEP sets out how the FSR should be calculated, and provides: 4.5 Calculation of floor space ratio and site area (1) Objectives The objectives of this clause are as follows: (a) to define floor space ratio, (b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to: (i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and (ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and (iii) require community land and public places to be dealt with separately. (2) Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be: (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out. In addition, subclauses (4)-(7) apply to the calculation of site area for the purposes of applying a floor space ratio to proposed development. (4) Exclusions from site area The following land must be excluded from the site area: (a) land on which the proposed development is prohibited, whether under this Plan or any other law, (b) community land or a public place (except as provided by subclause (7)). ... (6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.
Where a proposed development does not comply with the development standards contained in the Canterbury LEP, the proponent can in certain circumstances make a request for the consent authority to grant an exception to the standard under cl 4.6, which provides: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. ...
Relevantly, the objectives of the R3 Zone are set out in the Canterbury LEP as: Zone R3 Medium Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.

[8]

Overdevelopment of the site

In relation to the overdevelopment contention, the experts disagree on whether or not the built form, streetscape and residential amenity outcomes of the proposal (for the development and neighbouring sites) are acceptable from a planning perspective.
Although deferring to legal submissions in relation to whether the RFB enjoys existing use rights, the experts agree that the works proposed to the RFB and on allotment 18 do not involve the creation of any additional gross floor area ('GFA') as defined in the Canterbury LEP, and that consolidation of the allotments should be a condition of any development consent granted.
In relation to FSR calculations, while the experts again deferred to legal submissions as to whether, and how, the FSR control was to be applied to the development, they agreed that: 1. If the FSR was calculated so as to include the GFA of both the new multi dwelling housing component and the RFB, the proposal would involve seeking approval for 1,564.5m² of GFA spread over the three allotments. If the FSR standard was to be applied across the site area of the three allotments (2,750m²) this would represent an FSR of 0.56:1, and would equate to a non-compliance with the standard of 189.35m² or 13.7%. 2. If the FSR was calculated so as to include the GFA of the multi dwelling component only, the proposal would involve seeking approval for 1,187.2m² of GFA. If the FSR standard was to be applied across allotments 20 and 22 only, this would represent an FSR of 0.6:1, and would amount to a non-compliance with the standard of 200.8m² or 20.4%. 3. If the FSR was calculated so as to include the GFA of the multi dwelling component only, this would involve seeking approval for 1564.5m² of GFA. If the FSR standard was to be applied across allotments 18, 20 and 22, this would represent an FSR of 0.43:1, and would be compliant with the FSR control.
In relation to the aspects of the proposal facing Northcote Street, it was agreed that the amended plans address the experts' earlier concerns in relation to the street-facing townhouses of the multi dwelling housing (numbers 1 - 3). Regarding the attic floor space within these townhouses, Mr Boston's position is that such floor space, although required to be considered in the FSR calculation, is located within a pitched roof form such that it does not contribute to any perceived massing when viewed from the street. As the roof form is compatible with the pitched roof form established within the site's visual catchment, he opines that the form and massing of the street-facing townhouses is compatible with adjoining development. Ms Gordon accepts that the amended plans provide an appropriate streetscape presentation, however maintains concerns in relation to the impacts of the proposal on the streetscape arising from the northern side of the attic of townhouse 3 and the southern side of the attic of townhouse 1.
Despite this breach, Mr Boston was of the view that the amended plans, including the introduction of a hipped roof form and an increased deep soil landscaped setback to the rear boundary, constituted an improvement from the earlier plans. He also opined that the height, form and massing of the rear townhouses was acceptable, noting that the objective of the DCP control was to ensure that the development was of a scale that was visually compatible with adjacent buildings, the character of the area and the objectives of the zone. Further, Mr Boston emphasised that the entire development was, in any event, compliant with the 8.5m height standard in the Canterbury LEP, noting that the rear townhouses present a compliant single-storey wall height form to the rear boundary. Accordingly, he maintains that the rear townhouses do not give rise to any adverse residential amenity impacts in terms of overshadowing, view loss or privacy.
Ms Gordon however was of the view that the built form of the rear townhouses is unacceptably bulky for the traditional rear yard location. She expressed concerns in relation to the bulk of the roof form to the rear of the proposal and notes that the roof will be visible from properties to the rear of the proposal. While Ms Gordon conceded that the visual bulk had reduced by the lowering of the roof form, and some angling of the first floor, she expressed a preferred outcome for the rear to be consistent with the DCP which she opined required a single-storey building in this location. In this regard she stated "we have got close to that but I think there is still further work that should be done". Her primary concern remains that the bulk and scale of the rear building is unacceptable.

[11]

Clause 4.6 request

The experts agreed that subject to the legal position, a cl 4.6 objection "would appear to be necessary". The experts disagreed as to whether the cl 4.6 variation request prepared by Mr Boston for the applicant (attachment 2 to Exhibit 3) was well-founded.
Ms Gordon's position was that a cl 4.6 request was not well-founded as the exceedance of the FSR created unacceptable consequences. Ms Gordon's first concern was in relation to the solar access issues relating to the private open spaces of the townhouses 1 - 3, which resulted in non-compliance with the CDCP control. Second, Ms Gordon expressed concern regarding the amenity impact of the proposal on the adjoining rear properties. Relevantly, to address privacy concerns on adjoining rear properties, the sill heights for the rear facing windows of the rear townhouses are at 1.5m, with the result that there is only essentially an outlook to the sky, which in Ms Gordon's opinion reduces the amenity of these bedrooms. Ms Gordon also identified a concern arising from the impact of the visual bulk and scale of the rear of the townhouses. Overall, Ms Gordon opined that the unacceptable consequences are caused by the density of the proposal, meaning that a cl 4.6 request which seeks to overcome the controls on density is not well-founded.
Ms Gordon opines that, rather, it would be a better planning outcome to "get rid of the residential flat building", which would have the advantage of "bringing the site back to what the zone intends it to be". Despite this, Ms Gordon accepts that there may be some amenity and useability improvement resulting from the proposed works to the RFB, however notes that there will similarly be adverse impacts, such as the impact of the privacy screens on the occupants of the ground floor units. Ms Gordon opines that the fact that such mitigating measures are required is indicative of the inappropriateness of the proposal.
Mr Boston by contrast opines that the cl 4.6 request is well-founded, and that each of Ms Gordon's concerns can be addressed. In relation to solar access, Mr Boston repeats his comments in the joint report, that solar access to the private open space at the rear of townhouse 1, although marginally inadequate, is compensated for by the solar access enjoyed by the private open space at the front of the townhouse in the afternoon.
In relation to Ms Gordon's concerns regarding the amenity impact of the proposal on adjoining properties, Mr Boston opines that the bedrooms at the upper levels of the rear townhouses enjoy appropriate amenity and outlook, and that a 1.5m sill height for the rear windows does not provide any adverse impact. Further, Mr Boston referred to drawing 202, Northern Elevation (in Exhibit E) which he says shows how the roof form "hips back" from the rear boundary at "quite an angle" and how the bedroom windows (which were also of concern to Ms Gordon) sit within that roof form as a "flush element" more in the nature of a skylight as opposed to a dormer window. Accordingly, Mr Boston opines that Ms Gordon's amenity concerns have been addressed.
In response to Ms Gordon's concerns regarding visual bulk at the rear of the proposal, Mr Boston opines that the roof form is "substantially hipped". Further, to the rear boundary, the proposal maintains a wall height of less than 3.8m, and maintains a pitched roof which "pushes the bulk and the massing of that roof away from the rear boundary…" He also noted that the introduction of the hipped roof form is an appropriate response in that the floor space in the rear building is within a pitched roof form which, even if the floor space is removed, will still result in a pitched roof form "looking very similar to what is currently proposed".
Addressing the relevant objectives of the FSR control in cl 4.4 of the Canterbury LEP, Mr Boston refers to his 4.6 request and opines that the area of non-compliance "could generally be confined to the floor space located in the attic area in the front townhouses and the bedrooms within the rear townhouses which are buried within that hipped roof form", and that the floor space was "appropriately distributed" across the site.
Mr Boston also suggested certain environmental grounds to justify the FSR exceedance - being first, that the RFB is a functional building presumably enjoying existing use rights and that could and should be used for residential purposes; second, that the non-compliant floor space is effectively buried within the roof form and does not contribute to any discernible form of bulk and scale; third, that the non-compliance does not defeat any of the objectives of the zone or of the FSR standard; and fourth, that the proposal does not cause any environmental impacts.
Mr Boston opines that, leaving aside strict application of the CDCP provisions, the proposal complies with the height development standard in the Canterbury LEP. Further, despite Mr Gordon's concerns regarding the rear of the proposal, it satisfies the objectives of the CDCP height control in relation to the rear of the site, in that the development is of a scale that is visually compatible with adjacent buildings, character of the area, and objectives of the zone.

[13]

Council's submissions

At hearing, Mr Jackson's primary submission was that the proposal is not permissible as it proposes the retention and improvement of the RFB in circumstances where residential flat buildings are prohibited under the Canterbury LEP. Contrary to the applicant's position, the RFB is not a lawful existing use. Council therefore submits that the proposal consists of two "separate and independent" uses - namely the use of one part of the site (allotment 18) as a residential flat building and the use of the remainder of the site (allotments 20 and 22) for "multi dwelling housing".
In summary, Council submits that the onus is on the applicant to prove lawful existing use, and that in the circumstances the Court would not be satisfied that allotment 18 has the benefit of a lawful existing use within the meaning of the EPA Act. Council further submits that, even if the applicant can prove lawful existing use at the relevant date, that use has since been abandoned.
Council's primary position is that the applicant has not established that there was a lawful existing use of the RFB as at the relevant date. While the applicant relies on the Canterbury Planning Scheme Ordinance dated August 1970 ('1970 Ordinance') as the relevant planning instrument prohibiting residential flat buildings, Council submits that this document is not before the Court, and therefore the submission has not properly been made out. Council submits that the appropriate course would have been for the applicant to have undertaken a detailed consideration of historical planning instruments so as to determine the relevant date, which in the circumstances has not been undertaken. Even if the Court were to accept that the relevant date was in fact 1970, Council submits that the applicant has not produced evidence as to precisely what was being carried out at the relevant date. Council submits that, for example, the "use" may have been a boarding house or hotel. Accordingly Council submits there is no evidence of a lawful existing use at this time.
However, if the Court finds that the RFB did have a lawful existing use, Council submits that such use has since been abandoned. Council submits that there is no evidence of any continued use of the RFB as a residential flat building, and in the circumstances the Court is entitled to find that any existing use has been abandoned.
If however the Court were to find that that there was an existing use that has not been abandoned, Council submits that that existing use relates to allotment 18 and operates wholly and independently to the multi dwelling housing development at allotments 20 and 22. In circumstances where the proposal seeks consent for development on allotment 18 (being works in connection with an alleged existing use), Council submits there is no power to grant consent because the application before the Court does not seek consent for "enlargement or expansion" of the use pursuant to the EPA Regulations.
While contending that allotment 18 does not enjoy existing use as defined in s 106 of the EPA Act, Council accepts that on 11 July 1963 the 1963 Consent was granted pursuant to the County of Cumberland Planning Scheme Ordinance ('CCPSO') for the erection of an RFB at 18 Northcote Street. Council accepts there may be a presumption of regularity that the RFB has been constructed in accordance with this approval, however maintains that there is no presumption that there is a lawful existing use. Council however does accept that the approval is a "saved consent" pursuant to s 109B of the EPA Act.
Given the 1963 Consent is a saved consent pursuant to s 109B, Council submits that the controls in the Canterbury LEP are applicable to allotment 18 as the provisions of s 108(3) of the EPA Act (the non-derogation provisions) do not apply to a s 109B saved consent (see Cracknell at [50]). Council submits that the only relevant development standard, having regard to the circumstances, is the FSR standard in cl 4.4. However Council submits that this development standard has no work to do in relation to allotment 18 as the RFB is already constructed.
Though Council accepts that the RFB has the benefit of a saved consent under s 109B, and that the Court has the power to modify a saved consent pursuant to s 109B(2)(b) of the EPA Act, Council submits that the applicant has not sought specifically to modify the saved consent.
Council submits that while the Court has the power to modify an earlier consent through the imposition of a condition of consent in accordance with ss 80A(1)(b) and 80A(5) of the EPA Act, the 1963 Consent cannot be modified in the manner sought by the applicant, with the works contemplated on allotment 18 including substantial excavation, the construction of masonry stairways, the creation of new pathways and ramps, and the construction of a new sewer main and new drainage infrastructure.
Council further submits that the proposal requires alteration of the RFB, including for example moving the existing entrance and rear pathways to an area that is within allotment 20, which impermissibly extends the existing use beyond allotment 18. Further, Council submits that the proposed set of masonry stairs (basement stairs) on the southern boundary of 18 which will provide access to a basement under the rear of the area on allotment 18 could not have been something which was part of the 1963 Consent, but rather seeks to enlarge and expand the saved consent in a way that is not permissible under s 109B.

[14]

Applicant's submissions

Ms Duggan, for the applicant, submits that the proposal is not prohibited by virtue of the incorporation of the RFB component, as the RFB either enjoys existing use rights under s 106 of the EPA Act, or the 1963 Consent is a continuing consent under s 109B of the EPA Act. The applicant's primary submission is that, as the RFB enjoys existing use as defined in s 106, the "non-derogation" provision of s 108(3) of the EPA Act applies, and therefore the Canterbury LEP has no operation in relation to the RFB.
The applicant submits that the background material styled "RFB consent documentation" (attachment 3 to the joint expert planning report (Exhibit 3)) provides sufficient history so as to establish a lawful existing use. Although neither the actual approved, stamped plans, nor the application relating to the 1963 Consent are available, the applicant submits that the background material, comprising three letters dated July and August 1963 and three Council minutes also of July and August 1963 makes it clear that approval was granted on 11 July 1963 pursuant to the CCPSO for the "erection of residential flats". The applicant submits that the historical correspondence relevant to the 1963 Consent extracted from Council documentation also makes it clear that the consent related to the erection of a two-storey block of six two-bedroom residential flats. The applicant submits that the Court can rely on the fact that the 1963 Consent has the benefit of the presumption of regularity, and submits that the Court is able to infer that the authorised use has continued.
In relation to Council's submission that any existing use has been abandoned, the applicant submits that Council has not identified at any time between 1963 and 2015 when the use of the RFB "ceased" and, in these circumstances, Council has the obligation to establish abandonment as considered in Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 at 144. Despite the fact that Council bears the onus in relation to abandonment, the applicant submits that the documentary material marshalled by the applicant (contained in Exhibit J) shows that the RFB was occupied by various tenants up until 18 December 2015, in particular unit 6 of the RFB at 18 Northcote Street. Further, the evidence shows that on or about 20 November 2016, the applicant retained real estate agents, McGrath Property Management, pursuant to an "exclusive residential management agency agreement", to re-let the property and that rental income was thereafter received from March 2017. Therefore, the material shows that the only relevant period of vacancy of the RFB was from on or about 18 or 19 December 2015, when the last tenant vacated, up until the expressed intention to re-occupy, in effect, by the retention of McGrath Property Management on 20 November 2016. Further, the applicant received rent from March 2017, such that within that 12 month period (from the last occupied tenancy) the applicant evinced the intention to re-let the premises.
The applicant further submits that while the 2015 Consent provided for the demolition of the RFB, the correspondence between the applicant's representatives and Council officers commencing in November 2015 shows that the applicant was desirous of retaining the RFB, even to the extent of considering an application for modification of the 2015 Consent to retain the RFB. This correspondence also indicates that prior to the grant of the 2015 Consent, the initial development application had sought to retain the RFB, however was amended at Council's request to allow the multi dwelling housing to spread across the site.
The applicant submits that this is indicative of an intention to retain the RFB and, in the circumstances, any suggestion of abandonment has been rebutted. The applicant refers to Hudak v Waverley Municipal Council (1990) 18 NSWLR 709 at 712 and 714, where the Court of Appeal considered that mere cessation of use does not mean that the use has been abandoned, and determined that the intention or contemplation of the owner was relevant. In the present circumstances, the applicant submits that its intention was to retain the use of the RFB as a residential flat building, and the evidence shows there was no abandonment.
The applicant submits that as at 2017, it is clear that the RFB continues to be used as a residential flat building. Based on observations on the site view, the presumption of regularity, and the inference that can be drawn from past and present conduct, the applicant submits that the Court would be comfortably satisfied that the RFB has a lawful existing use as a residential flat building, which has continued into 2017 and that there is nothing to suggest that the use is anything other than for that purpose.
In the alternative, if the Court found that there was no existing use as defined in s 106 of the EPA Act, the applicant maintains that the 1963 Consent was clearly a saved consent pursuant to s 109B (as conceded by Council), and accordingly the proposal is not prohibited by virtue of the inclusion of the RFB.

[15]

Consideration

The applicant's primary submission is that the RFB enjoys existing use rights as defined in s 106 of the EPA Act. Relevantly, the Court of Appeal in Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 ('Jojeni') held that s 106 identifies two categories of use, the distinction being between those developments which were permitted without consent at the time before the use became prohibited (falling into sub-section (a)) and those developments which were permitted only with consent and for which consent was granted before the use became prohibited (falling into sub-section (b)). The distinction between these two categories is relevant in distilling the particular rights granted under the existing use, as cl 39 of the EPA Regulations establishes two separate "relevant dates", depending on whether or not the existing use falls within s 106(a) or s 106(b) of the existing use.
Applying Jojeni, given the parties' acceptance that the 1963 Consent granted consent for the RFB, the contended existing use falls within s 106(b) of the EPA Act. Pursuant to that sub-section, to establish such existing use the applicant is required to demonstrate, first, that the 1963 Consent was granted for use of the RFB at a time before residential flat buildings in that locality were prohibited, and second, the use of the RFB within one year after residential flat buildings were prohibited, with such use required to be in accordance with the terms of the 1963 Consent and to such an extent to ensure that the 1963 Consent (apart from the prohibition on residential flat buildings) would not have lapsed.
Critical to this definition therefore is identifying the time at which residential flat buildings were prohibited in the locality, which the applicant has not been able to do with certainty.
There has been some suggestion, both by the applicant in oral submissions and Council in correspondence in response to the applicant's request for "further and better particulars" (Exhibit 2), that residential flat buildings "other than RFB Class A and Class B" were prohibited by the introduction of the 1970 Ordinance. Neither party however has been able to put before the Court such a document, nor, it seems from the correspondence in Exhibit 2, has either party sighted the relevant document. In fact, there was little evidence of the historical planning regime in the Canterbury area of the type considered in Seraglio v Shoalhaven City Council [2017] NSWLEC 45 ('Seraglio') at [25] and BYT Nominees at [27].
In circumstances where the applicant has not been able to make good the date at which residential flat buildings where prohibited in the locality, I am unable to find that the definition in s 106(b) of the EPA Act has been satisfied.
Even if I was to assume that the Ordinance was the relevant instrument prohibiting residential flat buildings and that the critical date is therefore 1970, the 1963 Consent is not before the Court, and therefore I am unable to determine whether or not the RFB was being used according to the terms of that consent.
Further, there is no evidence before the Court of any use of the RFB in or around 1970. The applicant submits that the Court should, taking into account the evidence demonstrating the use of the RFB from 2015 to present day, and the granting of the 1963 Consent, draw an inference regarding the past and present use of the RFB to find that the RFB enjoys existing use. While I accept that a presumption of regularity to be applied, properly understood this presumption relates to the issuing of the 1963 Consent rather than acts done pursuant to the 1963 Consent.
Unlike the circumstances considered in Ashfield Municipal Council v Armstrong [2002] NSWCA 269; (2002) 122 LGERA 105 at [48]-[50] and Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; (2006) 155 LGERA 230 [11]-[16], I am not satisfied that the facts in these proceedings raise a presumption of continuance or lawfulness of use of the RFB. In circumstances where the earliest evidence of use of the RFB as a residential flat building before the Court is in 2015, and the contended date of prohibition is 1970, even if I were satisfied that 1970 was the appropriate date of prohibition, I would be unable to find that the RFB was being used as such at that date.
Given my above finding, it is unnecessary for me to make findings regarding the parties' submissions on abandonment.
While I am not satisfied that the RFB enjoys existing use as defined in s 106 of the EPA Act, I accept the parties' agreement that the RFB has the benefit of a saved consent pursuant to s 109B of the EPA Act, being the 1963 Consent. As noted in Cracknell at [49]-[51], s 109B aims to preserve an operative consent, such that the consent can continue to operate according to its terms. Relevantly, a saved consent under s 109B is not constrained by the restrictions in s 107, nor does it enjoy the benefit of the non-derogation provisions in s 108. Accordingly allotment 18 is subject to the current development standards, including therefore the FSR control in cl 4.4 of the Canterbury LEP.
In relation to Council's submissions regarding modification of the 1963 Consent, first, I do not consider that the applicant is required to submit a separate application to modify the 1963 Consent. I accept, as submitted by Council that, from a planning perspective, the proposal may be seen to have two separate components. However, as with any proposal for a mixed use development, this does not mean that the applicant is required to make two separate applications. I accept Ms Duggan's description of the proposal (at transcript 26/09/2017, p 23. 30-37) that: What we are seeking to do is, by the three lots, provide for new multi-unit housing to be constructed on the two lots which are presently zoned for that and to provide, as part of that development, changes to an existing building, not the use of but changes to an existing building that permit for the amenity impacts, both existing without the new development or that may exist with the new development, to be addressed.
Further, ss 80A(1)(b) and 80A(5) of the EPA Act specifically provide for the imposition of conditions relating to the modification (or surrender) of a consent or a "right conferred by Division 10" of the EPA Act in relation to land to which a development application relates. In the circumstances, I am comfortably satisfied that the development application and the material before the Court articulates with appropriate precision the works that are to be undertaken on allotment 18, as well as on allotments 20 and 22. Further, if I was otherwise minded to grant consent to the application, I consider that suitable conditions could be moulded to facilitate that outcome.

[19]

Consideration

Subclause (2) of cl 4.5 defines the "floor space ratio" as follows: Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. (emphasis added)
Accordingly, the primary question for the purposes of calculating the FSR is to determine what constitutes the site.
In relation to Council's submission that for the purposes of the FSR control, the "site" should only comprise allotments 20 and 22, because the application in effect provides for two separate and independent uses, given my finding above at [83], I am satisfied that the application seeks consent for development on all of allotments 18, 20 and 22 and that the site should be defined accordingly. Further, even if I were to find that the site comprised only allotments 20 and 22, I consider that allotment 18 would be capable of being incorporated into the site area by cl 4.5(6). Relevantly, the works contemplated on allotment 18 include substantial excavation, the construction of a masonry stairway, the creation of new pathways and ramps, and the construction of a new sewer main and new drainage infrastructure. In the circumstances, I am satisfied that the works on allotment 18 constitute "significant development" for the purposes of cl 4.5(6).
Given my finding that the site is properly to be considered as comprising allotments 18, 20 and 22 and my finding that the RFB does not benefit from the s 108(3) non-derogation provision, the calculation of the GFA, pursuant to cl 4.5(2), is to include all buildings within the site, being the RFB and the multi dwelling housing. This results in a GFA of 0.56:1, which when compared against the site area, results in an agreed exceedance of the FSR control by 13.7%.
Relevantly, even if the site was defined, as Council proposes, to be only allotments 20 and 22, the GFA would be calculated on the basis of the multi dwelling housing component only and would result in a FSR of 0.6:1, which exceeds the standard by 20.4%.
For completeness, I note the applicant's primary submission (at [92] above), that the FSR should be calculated by considering the site area of allotments 18, 20, and 22 as against the GFA of the multi dwelling housing only, relies on a finding that allotment 18 enjoys existing use rights for the purposes of s 106. Given my findings above, this scenario does not arise. Despite this, I note that I have some discomfort with the applicant's approach, which seeks to include allotment 18 in the FSR calculation for the purposes of determining the site area, but excludes the RFB on allotment 18 from the FSR calculation for the purposes of determining the GFA. Relevantly, even if I had found that the RFB enjoys existing use rights as defined in s 106 of the EPA Act, applying Seraglio at [23]-[24], the relevant planning unit would extend to the entirety of allotment 18. Accordingly the non-derogation provisions would have precluded application of the development controls to that allotment, not just the RFB, meaning that the FSR would, in my view, be calculated on the basis of only allotments 20 and 22, and the multi dwelling housing component, resulting in an FSR exceedance of 20.4%.
Accordingly, it is clear that on any construction, the proposal results in an FSR exceedance, requiring therefore a request under cl 4.6 for the consent authority to grant an exception to the development standards.

[20]

Clause 4.6 request

The cl 4.6 request prepared by Mr Boston is relatively compendious and his reasoning, which was expanded upon in his oral evidence, may be summarised as follows. 1. In relation to objectives of the R3 Zone, the cl 4.6 request states that the proposal "is not antipathetic to the zone objectives" as it provides for the housing needs of the community within a medium density residential environment, and for a variety of housing types. 2. In relation to the objectives of the FSR standard, the cl 4.6 request states that development "responds" to each of the objectives in that: •first, in relation to providing control over the bulk of future development, the height, bulk and scale of the proposal is consistent with that established by other medium-density housing forms within the locality, and the "GFA/FSR is appropriately distributed across the site so as to not give rise to any unacceptable or jarring streetscape or residential amenity consequences". Mr Boston also emphasised that the attic floor space, which is taken into account in the FSR calculation, is located within the pitched roof, and accordingly does not "significantly contribute to building bulk"; •second, in relation to protection of the environmental amenity and desired future character of the area, the proposal, "as reflected by the building height and form does not defeat this desired future character". Further, Mr Boston stated that compliant levels of solar access are maintained to all adjoining properties and the building mass is broken, articulated and screened by intervening landscaping such that "…it will not give rise to any jarring visual impacts"; •third, in relation to minimising adverse environmental impacts on adjoining properties and the public domain, the cl 4.6 request states "…we have formed the considered opinion that most observers would not find the proposed development offensive, jarring or unsympathetic in a streetscape context and accordingly, the proposal does not defeat this objective"; and •fourth, in relation to optimising development density within easy walk of the railway stations, the cl 4.6 request notes that the proposal is within a one kilometre walk of Canterbury Railway Station. 1. In addition to the above, the cl 4.6 request further states that "there are sufficient environmental planning grounds to justify the variations sought given the general paucity of adverse streetscape and residential amenity consequences and the existing rights afforded to the existing and retained residential flat building which benefit from existing use rights". 2. Relevantly, the cl 4.6 request states that the FSR non-compliance "can be attributed to the desire to retain the existing residential flat building on the site with the townhouse component of the scheme fully compliant with the FSR standard".

[21]

Council's submissions

Council submits that the cl 4.6 request is not well-founded for the following reasons: 1. The proposal exceeds the standard by 13.7% if calculated over all three allotments, and 20.4% if calculated over 20 and 22 only. 2. The FSR objectives in cl 4.4(1)(a)-(c) are not complied with. The control over bulk and desired future character is not achieved with either a 13.7% or 20% exceedance, both of which constitutes an "unacceptable departure" from the development standard. Further, the exceedance of the bulk across the site impacts upon the amenity of the RFB by necessitating the incorporation of privacy screens and the like on all windows on the southern elevation of the RFB. Additionally, the bulk of the built form to the east of the site (being townhouses 4 - 9) will have unacceptable visual impact on the adjoining properties. Further, there is concern in relation to the amenity of the bedrooms at the rear of townhouses 6 - 9. 3. The objectives of the FSR standard seek to provide effective control over the bulk of future development and to protect the environmental amenity and the desired future character of the area. In circumstances where the 0.5:1 standard reflects a built form for the desired future character of the R3 Zone pursuant to the Canterbury LEP, and the proposal does not "minimise adverse environmental impacts on adjoining properties and the public domain", the cl 4.6 objective is not well-founded. This is particularly so having regard to the bulk of the roof form to the rear of the proposal, in circumstances where the development also results in solar access and amenity concerns for the courtyard of townhouse 1. In any event, Council submits that the suggested absence of environmental harm is no justification for a relaxation of the standard (as per Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 ('Hooker Corporation')). 4. Mr Boston's justification for the exceedance, being in part based upon the retention of the RFB, is a "flawed" approach as the retention of the RFB does not preclude a compliant development. The incorporation of the RFB into the development ought not to be seen, as the applicant appears to submit, to be a justification for the exceedance of the FSR standard and the objectives of the zone. 5. To the extent that the applicant relies on the objective of the R3 Zone to "provide a variety of housing types within a medium density residential environment", Council submits that this is only partially achieved, as the scale and bulk of the proposal is not encouraged as it is not reflective of the FSR standard of 0.5:1. In any event, Council submits that mere compliance with the zone objectives is not a sufficient justification to vary the standard, relying on Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 ('Four2Five'). 6. To the extent that justification for the FSR exceedance is based upon the 2015 Consent, which appears to be Mr Boston's view, such justification is unwarranted. The 2015 Consent is significantly different from the current proposal, primarily because that development involved the demolition of the RFB to provide for an extensive landscaping regime, as well as extensive communal open space. Accordingly the 2015 Consent achieved a beneficial strategic planning outcome in having the whole of the site developed for a lawful purpose in compliance with zone objectives. 7. The Court would not be minded to grant an exception to the FSR requirement as contained in the Canterbury LEP as there are no site constraints which would preclude a compliant development (as per Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 ('Wehbe') at [79]). 8. Finally, the desired future character of the locality in the R3 Zone is a built form representative of an FSR of 0.5:1, and in the circumstances where the evidence establishes that there are no site constraints which would preclude a compliant development, additional floor space be it either 13.7% or 20.4% over the standard would have the effect of eroding the efficacy of the standard (see Salanitro-Chafei v Ashfield Council [2005] NSWLEC 366 at [23]-[27]).

[23]

Consideration

In relation to cl 4.6, as consent authority, I must not grant consent to the proposal unless I am satisfied first, that the applicant's cl 4.6 written request adequately addresses the matters required to be demonstrated by cl 4.6(3) - being that compliance with the standard is unreasonable or unnecessary and that there are sufficient environmental grounds to justify contravening the FSR standard - and, second, that the development will be in the public interest because it is consistent with the objectives of the FSR standard and the objectives for development within the R3 Zone.
Whilst the proposal is somewhat unusual to the extent that it seeks to include the RFB, which I accept has rights under Division 10 of the EPA Act as a continuing use, for the reasons that follow, I am not satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) or that the proposed development will be in the public interest. My reasons, which are reflective of Council's submissions, can be shortly stated.
In relation to the objectives of the FSR standard, I do not accept that the proposal is consistent with the objectives in cl 4.4(1)(a), (b) and (c). The objective to provide effective control over the bulk of future development is more appropriately achieved by a built form which reflects the FSR and as noted below, there is little reason, such as any apparent site constraint, that would account for non-compliance.
I find that the bulk of the built form particularly to the rear of the site does have corresponding effects as outlined by Ms Gordon and consequential effects upon the occupants of the RFB (which are required to be addressed by privacy screens and the like), and creates the perception of bulk to the rear of the site. Whilst there is no primary streetscape concern, Ms Gordon gave evidence that the bulk will be noticeable from the rear (Allen Street) properties, which I accept. I also note the concerns of Ms Cheryl Marshal, a local resident, who gave evidence as to her concerns regarding her loss of privacy arising from the fact that, in her opinion, the townhouses would be overlooking her property. Further, I accept Ms Gordon's evidence that the amenity of bedrooms at townhouses 6 - 9 is poor and that this is to an extent the result of the exceedance of the standard. Therefore, I am not satisfied that the proposal is consistent with the objectives to provide effective control over bulk, to protect the environmental amenity and future character of the area and to minimise the adverse impacts on adjoining properties.
In relation to the zone objectives, I accept that the proposal does provide housing for the needs of the community and, on one view, a "variety of housing types". However, I note that this objective must necessarily be limited to the types of housing that are permitted within the zone - it cannot be that the objective encourages houses that are otherwise not permitted under the instrument. Accordingly, while the multi dwelling housing component does satisfy the zone objective, I am reluctant to extend this finding to the RFB. Importantly, in any case, even if there is compliance with the zone objectives, this does not necessarily justify an exceedance of the standard.
I accept Council's submission that the applicant's justification for the exceedance is partly based upon the retention of the RFB. To the extent that the 4.6 request relies upon retention of a building use which is otherwise prohibited, I do not find this persuasive. The retention of the RFB, which the parties agree benefits from s 109B, does not, in my view, provide a justification for a variation or exceedance of the FSR standard. Rather, I consider the continuance of the RFB to be a neutral matter which does not assist the applicant.
Further, I do not find Mr Boston's view that the fact that a significant amount of the floor space is within the pitched roof, such that its removal would have little effect on the perceived bulk and scale of the proposal, to be a compelling reason to vary the standard. The effective control over the bulk of a proposed development is one of the objectives of the FSR control, and it would be counter-intuitive to assume that compliance with one of the objectives of the control is a ground for not complying with the control.
Overall, I am satisfied that there are no site constraints which would preclude a compliant development and I accept the submission of Council that, in that circumstance, allowing the proposal to proceed despite the FSR exceedance would give rise to a potential eroding of the efficacy of the standard, which is clearly not in the public interest.
Further, despite the applicant's submission, I am satisfied that the likely effects upon the amenity of the neighbours to the rear of the proposal, solar access concerns, and internal amenity concerns relating to the bedrooms in the rear townhouses are generated by the exceedance of the FSR control, as suggested by Ms Gordon's evidence.
Although the 4.6 request claims that there are sufficient environmental planning grounds to justify the variation given the "general paucity of adverse streetscape and residential amenity consequences and the existing use rights afforded to the existing and retained residential flat building, I do not accept this position. Little evidence has been called in relation to the "general paucity" of adverse streetscape and residential amenity consequences and even if that were the case, which I do not find, this does not constitute a compelling ground to justify an exceedance of the standard.
Accordingly, for the reasons above, I am not satisfied that the 4.6 request has adequately demonstrated that compliance with the FSR control is unreasonable or unnecessary, nor that there are sufficient environmental planning grounds to justify the contravening of the standard. Further, I am not satisfied that the proposal would be in the public interest because I do not consider that it is consistent with the objectives of the standard. Although there is some compliance with the objectives of the zone, this is insufficient reason to justify the exceedance.
In light of my finding that the cl 4.6 request is not well-founded, the applicant has not satisfied the 'jurisdictional gateway' and accordingly, while I note that the parties made submissions as to the merits of the proposal, it is not necessary for me to consider these submissions.

TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council

At a glance

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Judgment (26 paragraphs)

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Legislation Cited (1)

Cases Cited (18)

Cited By (3)