Tradelink Constructions Pty Limited v Holroyd City Council

The site and its context 3The site comprises two adjacent allotments known as Lot 2 in DP 218021 and Lot 2 in DP 218020 and is located on the southern side of the Great Western Highway between Berith Road and Crosby Street. The M4 motorway adjoins the site's southern boundary. 4Crosby Street is currently a one-way street accessed by a 6 m wide right of carriageway off the highway and a 3 m right of way and a 3 m laneway dedicated to the council providing access to the highway. Those rights of way are in favour of the council over Lots 1 and 7 in DP862464 and currently provide access to eleven allotments that have frontage to Crosby Street. Lots 1 and 7 front the highway and the rights of way would be extinguished once Crosby Street is linked to Berith Street. The development provides part of that link however, there are a further two allotments to be developed until the through link can be achieved. 5The site currently contains a dwelling house and a series of buildings that were used as a hardware and building supply business with first floor residence. The site is currently being used for the sale of Christmas products. 6The surrounding built character is predominantly low density residential with some recent medium density housing in the form of single and two storey villas and townhouse style dwellings. The higher density housing has been constructed to the east and west including that immediately to the west and adjoining the site. There is a veterinary hospital towards the east at No. 469 and other retail and business premises at the corners of Ettalong Road and Berith Streets and the highway including a 24-hour McDonalds restaurant. 7A gradual and identifiable urban renewal process is taking place in the broader locality with older housing stock being replace by low to medium density housing in the form of single dwellings, dual occupancies, villa and townhouse developments. There are no residential flat buildings fronting the highway in the vicinity of the site however there are duplex dwellings and multiunit housing and the council has recently approved a two storey residential flat building at the corner of the highway and Ettalong Road under the provisions of SEPPARH.

Background and the proposal 8The council refused the application on 12 July 2011 on seven grounds. In summary those reasons are as follows:

• Concurrence of the Roads and Traffic Authority (RMS) had not been obtained for the proposed site access of the highway;
• Failure to comply with development standards contained within SEPPARH relating to height and unit size;
• The development not being consistent with the character of the locality;
• Failure to comply with the objectives of the residential 2(a) zone for traffic generating developments and the proposed R2 zone under the council's draft local environmental plan;
• Non-compliance with provisions of the council's development control plan;
• Failure to provide a design verification statement in accordance with the provisions of State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Buildings (SEPP65).
• The site is unsuitable for the intended purpose. 9A conciliation conference was held on site on 16 May 2012 in accordance with the provisions of s 34 of the Land and Environment Court Act 1979. As a result of that conference, the applicant proposed amended plans in an attempt to address the council's contentions. The Court granted leave to the applicant to rely on those plans. It is those plans that are now before the Court. The plans provide for the:
• Demolition of all existing structures on the land;
• Construction of three residential flat buildings over basement carparks containing a total of 50 dwellings and 67 parking spaces;
• Dedication of land for the extension of Crosby Street;
• Associated site landscaping and the provision of two 3m wide pedestrian paths to link Crosby Street to the highway. 10The amended plans deleted a proposed new access point directly off the highway and reduced the height of the buildings so that the contentions regarding concurrence from RMS and the need for a design verification statement no longer apply. 11It is proposed to construct two residential flat buildings on land to the north of the proposed Crosby Street extension that are described as Blocks A and B. Each would be separated by a common ramp that provides access to basement carparks from the extension of Crosby Street. Block A is the western block and contains a basement carpark with 18 single car garages with storage areas to be allocated to the residential tenancies and 6 visitor spaces. The residential component is broken into two buildings at ground and first floor levels and is described as Blocks A1 and A2. Block A1 addresses Crosby Street and contains 2 x 3 bedroom and 2 x 2 bedroom units on the ground and first floor. Block A2 fronts the highway and contains 2 x 3 bedroom and 2 x 2 bedroom units on each of the building's two storeys and 2 x 2 bedroom townhouse style units to its rear. The internal layout and design of Block B is similar to Block A however its basement provides 18 garages and 5 visitor parking spaces. Ground level courtyards or first floor balconies are provided as private open space to the units. 12Block C is to be contained to the south of the Crosby Street extension and comprises a basement carpark with 14 garages including storage areas and 6 visitor parking spaces. The buildings present as three, two-storey buildings fronting Crosby Street. Building C1, the western building, contains 2 x 1 bedroom + study units on the ground floor and 2 x 2 bedroom units on the first floor. Building C2 contains 1 x 1 bed = study and 2 x 2 bedrooms on its ground floor and 3 x 2 bedroom units on the first floor. Building C3 contains 4 x 2 bedroom units, two on each floor. 13Overall the development provides parking for 50 resident and 17 visitor vehicles, 3 x 1 bedroom + study, 31 x 2 bedroom and 16 x 3 bedroom units totally 50 dwellings. 14Access to the development would be off that section of Crosby Street that is currently serviced by the rights-of-way referred to in [4] above.

The planning controls 15The site is zoned Residential 2(a) under Holroyd Local Environmental Plan 1991 (the LEP). Residential flat buildings (other than medium density housing) are prohibited in the 2(a) zone. Medium density housing is defined in the LEP as being: medium density housing means two or more dwellings of one or two storey construction, where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling, and includes semi-detached houses, villas, cluster homes, townhouses and the like. 16Holroyd Development Control Plan 2007 (DCP) applies to the site however there are no contentions in relation to the provisions of that plan. 17The application was lodged as Infill Housing as defined under Part 2 of Division 1 of SEPPARH as it applied at the time of lodgement, being 11 May 2011. For the policy to apply to the application, the site must be within a land use zone that is equivalent to the R1, R2, R3 or R4 residential zones contained in the Standard Instrument - Principal Local Environmental Plan (Standard Instrument) and within 800 m walking distance of a railway station or 400 m walking distance of light rail or a regular bus service but only if dwelling houses, multi-unit housing or residential flat buildings are permissible within the zone. Clause 11(a) of SEPPARH allows the construction of a residential flat building on land within an equivalent zone provided 50 % of the dwellings are to be used as affordable housing and the height of the development does not exceed 8.5m. 18Clause 14 lists standards, which, if met, cannot be used as grounds to refuse consent. These apply to density and scale, site and landscaped area (including deep soil zones), solar access, parking and dwelling size. 19Clause 15(1) of SEPPARH applies to the development and requires: A consent authority must not consent to development to which this Division applies unless it has taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that those provisions are consistent with this Policy. 20SEPPARH was amended by State Environmental Planning Policy (Affordable Rental Housing) 2011 (the amending SEPP) on 20 May 2011. Of particular relevance to the application are the introduction of savings and transitional provisions, deletion of certain provisions and the introduction of additional matters for consideration. Those changes amended clause 10 of the policy to remove the requirement to be within an equivalent zone and now provides that the type of infill housing must be a permissible land use on the land to which an application relates for the policy to apply. The effect of that change is, that without the savings and transitional provisions, the development as proposed in this application would be prohibited. Clauses 11 and 12 were repealed. 21The savings and transitional provisions relating to the 2011 amendment were added through clause 54A and, relevant to the application, subclauses 2-4 state: (2) If a development application (an existing application) has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made. (3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. (4) Despite subclause (2), clause 13 (2) (as in force before the amendments made by the amending SEPP) does not apply to development the subject of an existing application and any such application is to be determined by applying instead clause 13 (2) and (3) as inserted by the amending SEPP. 22The parties agree that the application is an existing application for the purposes of clause 54A. It is also agreed that discretion applies as to whether the Court determines the application under the former or the amending SEPP. The applicant advocates the application be considered under the provisions of SEPPARH as it applied at the time the application was lodged and the council did not oppose that position. It was further agreed that subclause (3) is a mandatory requirement in order that consent can be granted. 23State Environmental Planning Policy (Infrastructure) 2007 applies to the application as the site has frontage to classified roads (the Great Western Highway and the M4 motorway. Clauses 101 and 102 of the policy apply and state: 101 Development with frontage to classified road (1) The objectives of this clause are: (a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and (b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads. (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that: (a) where practicable, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. 102 Impact of road noise or vibration on non-road development (1) This clause applies to development for any of the following purposes that is on land in or adjacent to the road corridor for a freeway, a tollway or a transitway or any other road with an annual average daily traffic volume of more than 40,000 vehicles (based on the traffic volume data published on the website of the RTA) and that the consent authority considers is likely to be adversely affected by road noise or vibration: (a) a building for residential use, (b) a place of public worship, (c) a hospital, (d) an educational establishment or child care centre. (2) Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines that are issued by the Director-General for the purposes of this clause and published in the Gazette. (3) If the development is for the purposes of a building for residential use, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded: (a) in any bedroom in the building-35 dB(A) at any time between 10 pm and 7 am, (b) anywhere else in the building (other than a garage, kitchen, bathroom or hallway)-40 dB(A) at any time. (4) In this clause, freeway, tollway and transitway have the same meanings as they have in the Roads Act 1993. 24The applicant has addressed this requirement and the draft conditions, exhibit 4, include conditions to ensure compliance with clause 102(3). 25State Environmental Planning Policy No. 55 - Land Contamination also applies however the council is satisfied that the development is consistent with the provisions of the policy and can be made suitable for its intended use. 26A BASIX certificate has been provided for the amended proposal consistent with the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

The evidence 27The hearing commenced on site and evidence was heard from three persons, all representing owners of land within the subdivision to the immediate east of the site. The issues raised are summarised as:

• Development will increase traffic and parking demand within Crosby Street and the rights-of-way that service that portion of roadway leading to adverse impacts in terms of safety and amenity;
• Relies on use of right-of-way over objector's land (the Sarkis property) granted on a temporary basis to service adjoining subdivision and has waited 18 years for the Crosby Street extension to be completed, wants the land and bonds paid to the council returned and alternate access provided. Considers council has failed in its responsibility to provide access when it approved development of land in Ettalong Road;
• Dwelling is built to boundary and additional traffic will result in unreasonable noise;
• Loss of property value;
• Overshadowing;
• Social issues;
• Overdevelopment introducing too many people to the area. 28Ms Gerathy, for the council, advised the Court, that subject to it finding the site was within an equivalent zone and the applicant accepting the without prejudice conditions of consent, there were no merit contentions with the amended plans and says the proposal is acceptable. 29A position paper had been prepared by the council planner, Mr Faridy, (Exhibit 3) which addressed the council's original contentions in the case. Mr Faridy concludes that the matters raised in the contentions are either addressed in the amended plans or could be resolved by way of conditions. 30The applicant provided revised reports to reflect the amended plans which addressed compliance for access, acoustics, environmental effects and social impact. The council has reviewed those plans and is satisfied that the contentions have been resolved and has proposed appropriate conditions of consent to ensure the relevant recommendations are implemented. 31Expert reports addressing traffic and parking and urban design/compatibility were tendered (Exhibits E, F and M). None of the experts were required for cross-examination and the council did not dispute any of the findings contained in these reports. 32From the evidence provided, the applicant has demonstrated that the development complies with all relevant development standards contained within the LEP and SEPPARH. The floor space ratio of the development is 0.6:1; its height is less than 8.5 m; 50 % of the dwellings are to be made available as affordable housing; 67 on-site parking spaces are provided with only 25 required under the original SEPP, 57 under the amending SEPP and 60 under the DCP; all dwelling satisfy the minimum floor areas required; side setbacks exceed minimums, landscaped areas exceed minimums and the there is no evidence that the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development are not met. 33For consent to be granted, the Court must be satisfied that the site is within an equivalent land use zone. Despite SEPPARH having been made in 2009, the Director-General is yet to issue a determination that would provide guidance as to the issue and certainty to councils, developers and the general community. Accordingly, a determination under s 5(1)(b) is required. 34Ms Gerathy did not make any submissions in this respect. Mr McEwan, for the applicant submitted that the 2(a) zone was equivalent to the R1, R2 and R3 zones and, perhaps also the R4 zone. The structure of the 2(a) zone in the LEP is that uses are permissible where the particular use is not listed in the uses prohibited in section 4 of the land use table. That structure is similar to that which I considered in the matter Stebbing & Anor v Byron Shire Council [2012] NSWLEC 1129. 35The following table compares the uses permitted in each of the relevant zones contained in the Standard Instrument and the 2(a) zone: Land use 2(a) R1 R2 R3 R4 Attached dwellings • • • Boarding houses • • • • Child Care Centres • • • Community Facilities • • • • Dwelling houses • • • Group homes • • • • Hostels • • Multi dwelling housing • • • Neighbourhood shops • • • Places of public worship • • • • Residential flat buildings In a form limited to multi-unit housing • • Respite day care centres • • • • Semi-detached dwellings • • Seniors housing • • • Shop-top housing • •

36Consistent with the approach adopted in Stebbing, I find the 2(a) zone is a land use zone in which equivalent land uses are permitted in the R1 zone because of the number and nature of equivalent uses permitted with consent in each land use zone. Accordingly, the provisions of the SEPP would apply to the application. 37It is then necessary to determine whether the savings and transitional provisions contained within clause 54A should be applied. The council does not dispute the application is an existing application nor opposes the application of the savings provisions. The matter has been considered by this Court on a number of occasions and in particular, by Tuor C in Huang & Lei v Parramatta City Council [2012] NSWLEC 1077 where she considered a similar case where that development would also be prohibited if the amending SEPP were to be applied. She says at [23] - [25]: 23 The exercise of discretion to determine which version of the SEPP to apply would require a consideration of the circumstances of the case and the consequences of the exercise of discretion. In the circumstances of this case, an assessment of the application under the amending SEPP would result in the automatic prohibition and refusal of the application as it is not permissible under the Amending SEPP. No assessment of the merits of the application would be required, in particular a consideration under cl 54A(3) of whether the design of the development is compatible with the character of the local area. If the application were to be assessed under the version of SEPP ARH in place at the time of lodgement, cl 54A(3) would also be a mandatory consideration. 24 In exercising the discretion, I acknowledge that the normal purpose of a saving clause is to have a savings effect on an 'existing application' by not introducing retrospective controls that are determinative. It preserves a developments permissibility while enabling a consideration of an application's consistency with the planning approach sought by the new controls. It would appear to be fair and reasonable that an application, which was permissible at the time of lodgement, should not be rendered impermissible by a new instrument. Rather a consideration of the merits of the application, under the Original SEPP ARH, including an assessment of the compatibility of the design with the local area, should be undertaken. 25 In the circumstances of this case and in exercising the discretion under cl 54A(2), I find that the application should be determined as if the amending SEPP had not been made. 38I adopt that view and turn to the merits of the application. There is no dispute between the parties that the application warrants consent. 39The Court must, as required by cl 54A(3) of SEPPARH, take into consideration whether the design of the development is compatible with the character of the local area. In this regard, I accept the uncontested evidence of Mr Dickson and also note that Mr Faridy says that the proposal as modified addressed the council's earlier concerns by proposing smaller blocks separated by landscaped areas and that "this arrangment is more consistent with the existing development towards the west of the site along Great Western Highway and Crosby Street." The site view confirmed that the area is undergoing transition from detached single dwelling houses to multi-unit housing and I am satisfied that the development will be compatible with the character of the area.

Issues raised by residents 40The draft conditions of consent are agreed. The issue remaining is that of the use of the right-of-way that currently provides half of the egress driveway linking Crosby Street to the highway. The owner of that land has objected to its use for the additional traffic generated by the development. The right-of-way is in favour of the council and allows free and unrestricted access by the general public. There is no dispute that the terms of the right-of-way would allow its use by any person, including those associated with the proposed development, for vehicular egress or pedestrian access to the site. 41During the hearing the option for utilising, on a temporary basis, the proposed 3 m wide pedestrian pathway to be constructed within the development along the western property boundary to link Crosby Street and the units to the south of the site to the highway was raised. That pathway could be constructed as a temporary roadway until such time as the link to the eastern portion of Crosby Street is completed, on a basis similar to that applied by the council when it approved the adjoining subdivision under the provisions of Development Consent 94/135. 42 I note that the terms of the condition of consent that created the right-of-way suggest that the right-of-way was to be temporary and was to serve the subdivision of the land to which the consent applied. Condition 7, in particular reads: 7. A separate temporary ingress and egress for the proposed subdivision shall be provided. The circulation via the temporary access roads and proposed Crosby Road extension shall be one way anti-clockwise with suitable sign posting provided. A full width concrete driveway 4.0m wide and 1.2m wide concrete footpath along the full length of the proposed temporary access shall be designed by an Engineer and shall be to the satisfaction of Council. The corridor is to be adequately drained and areas on each side of the pavement are to be turfed and landscaped. All work to be completed to the Engineer's satisfaction. 43It is common ground that the terms of the right-of-way do not restrict its use to only those lots within the subdivision and that, as required by condition 10 of development consent 94/135, Crosby Street has been dedicated as a public road. All access to the proposed development will be off Crosby Street. 44Mr McEwan submits that as the site is accessed off a public road there is an entitlement to use that roadway and no need to carry out any alternate works. He further advises that the impact of the additional traffic to the Sarkis property is the result of the owner's decision to construct the new dwelling, that has only recently been completed, on the boundary with the right-of-way rather than apply the setback that applied to the original dwelling that existed on the lot when the land was subdivided and that the evidence of Mr Coady, traffic expert for the applicant, and not disputed by the council, is that the existing arrangement has capacity to cater for the traffic demands of the development. He further submits that Mr Sarkis accepted the terms of the consent to dedicate the land and those conditions remain until such time as Crosby Street is complete. He says the applicant is dedicating a further extension of Crosby Street at no cost to the council, the public benefit of that land is sufficient and will provide a further link in the roadway. 45Whilst maintaining the position that no works are required to alter the access arrangements, as an alternate to the full length construction of the roadway, the applicant tendered an alternate proposal that provided for the relocation of the roadway along the length of the Sarkis property and retained it in its current location to the south. These plans, Exhibit N, provide a 4m wide carriageway and 1 m wide pedestrian pathway linking to the existing egress point to the highway and provide for a 3 m setback to the Sarkis dwelling. As the garage to the Sarkis property relies on the council's 3 m roadway, no change to the access is required at that location. 46Ms Gerathy says that the road should be relocated wholly on the applicant's land as the Exhibit N proposal requires pedestrians to cross the right-of-way in the vicinity of the Sarkis garage. There is no evidence that such an arrangement is unsafe or that the alignment of the roadway does not meet relevant standards. 47Mr Coady calculates the peak traffic demand for the development would result in an additional 30 vehicles using the laneways (currently 21) and that "the additional traffic demand will be noticeable by residents of dwellings in Crosby Street. While those residents might not welcome the additional traffic demand on their street and the laneways which currently serve it, the additional traffic demand on Crosby Street and the laneways remains well within acceptable limits". This evidence was not disputed by the council. 48Having regard to the evidence, it is clear that there will be impacts to the adjoining development as a result of the application however, those impacts are within the design capacity of the roadway. In terms of the Sarkis property, I agree that the decision of the owner to act on the consent issued by the council in 1994 accepted the terms of the dedication of land and the grant of the temporary right-of-way and that, as created, those rights allow use of the land by any person who utilises the public road that is Crosby Street. 49I also consider that the increase in traffic volumes associated with the development are such that it is appropriate to provide a buffer to the Sarkis property and in this regard, the works outlined on the plans in Exhibit N should be implemented. Whilst I accept that the owner chose to construct the new dwelling on the boundary with the right-of-way, that decision was not unreasonable given the expectation that the right-of-way was temporary. It is not necessary that the temporary access arrangements alter along the southern extent of the roadway as sufficient setback to the adjoining property is provided. Similarly, it is a matter for the applicant whether, on the removal of the temporary access arrangements, the area is restored as a pathway or incorporated into the courtyards of the units. 50In relation to overshadowing, the evidence shows that the solar access enjoyed by the objector will comply with the council's standards for solar access and in fact exceed it and that it is an awning erected on the objector's property that causes the reduction in sunlight access to the windows affected. For that reason, it is not appropriate to refuse consent to the application. 51As discussed in [18] and [32], the application provides carparking in excess of requirements.

Conclusion 52Having determined the site is within an equivalent zone and SEPPARH applies to the application, that the transitional provisions of the amending SEPP should apply and that the development is compatible with the character of the local area, the threshold matters have been satisfied. The council raises no merit issues with the application and, on the review of the evidence and the assessments made under s 79C of the Environmental Planning and Assessment Act 1979 I am satisfied that consent can be granted subject to conditions as agreed and, in relation to the egress point, with a condition that requires the part relocation of that accessway onto the site in accordance with the plans in Exhibit N until such time as Crosby Street is connected to Berith Street. 53The parties are directed to file agreed conditions that reflect these findings by 4pm Monday December 10, 2012.

Sue Morris 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: 05 December 2012