Universal Property Group Pty Ltd v Blacktown City Council

The site and locality

1. The site comprises Lot E in DP442399 and is known as No 43 Church Street, Riverstone. It is an L-shaped lot with a frontage of 17.37m to Church Street and an area of 1821 m². The land falls towards the rear of the property and to the north-west.
2. The site is occupied by a single storey dwelling of fibro, weatherboard and tile construction with associated out buildings. These would be demolished to provide for the construction of the new development.
3. Surrounding development comprises single dwelling houses which are predominantly single story with a more recent two storey dwellings having being constructed to the east of the site at No 45 Church Street.

Background and to the proposal

1. The application as determined by the Council comprised one two-storey townhouse and five single-storey villa homes. Following a Section 34 conciliation conference presided over by a number commission of the Court, the applicant was granted leave to rely on amended plans. Those plans (exhibits A, B and C) propose the construction of a two storey building towards the Church Street frontage, three single-storey dwellings to the north of that building (rear) and two attached single-storey dwellings in the north eastern corner of the site, all of which would be serviced by a driveway that runs along the north eastern boundary of the site.
2. The two storey dwelling contains 4 bedrooms with the single storey dwellings containing 4 x 3 bedrooms and 1 x 2 bedrooms. Two parking spaces are allocated to each 4 and 3 bedroom dwelling either within a garage or on an open area adjacent to the dwelling with one space provided in a garage within the 2 bedroom dwelling. Three visitor parking spaces are provided towards the rear of the site.
3. Each dwelling would include an area of private open space with areas varying from 82m² for the two bedroom dwelling to 111m² for the four-bedroom dwelling, the latter including an area forward of the building within the setback to Church Street. Minimum width of those areas is 2.5 m.
4. The floorspace ratio of the development is 0.31:1.

The planning controls

1. At the time the application was lodged the land was zoned Residential 2(a) under the provisions of Blacktown Local Environmental Plan 1988 (LEP 1988). The proposed development is permissible with consent on the land so zoned. At the time the application was lodged the council had exhibited a draft local environmental plan that proposed to zone the land R2 low density residential which would have the effect of prohibiting that development. That exhibition period commenced on 19 April 2013, the application was lodged on 8 October 2014 however it was not until 2 April 2015 that the council forwarded the draft LEP to the Minister to be made.
2. Blacktown Local Environmental Plan 2015 (LEP 2015) took effect on 17 July 2015 and, pursuant to the provisions of that plan, the land is zoned R2 with the proposed development prohibited in that zone.
3. Clause 1.8A of LEP 2015 contains saving provisions that relate to a development application that was lodged prior the plan taking effect and is in the following form: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
4. Blacktown Development Control Plan 2006 (DCP) applies to the development with Part A - General Guidelines and Part C - Development in Residential Zones particularly relevant to the application. Paragraph 6.3 of Part C of the DCP states: The minimum width when measured at the building setback line to the street frontage, of any site on which medium density housing is proposed must be no less than 26 m. The width is, in Council's opinion, the minimum across which a development can be designed to fulfil the requirements outlined in the Part of the DCP regarding setbacks, accessway dimensions, private court dimensions and the like. This width is also the minimum width within which Council considers acceptable medium density housing development can occur on land in the City of Blacktown
5. The width of the site is 17.375m and therefore does not comply with the provisions of that clause.

The issues

1. The contentions in the case are that the proposed development is inconsistent with the objectives of LEP 2015; the site width at the frontage of the land is unsatisfactory as it does not comply with the requirements of the DCP; the proposed development is unsatisfactory with regard to the provision of the building setback; is not in the public interest as reflected in the submissions received by the council during the notification period and will not achieve the desired future character or zone objectives under the provisions of LEP 2015.
2. The objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.
3. The council contends the development is not consistent with the first objective.

The evidence

1. The hearing commenced on site with evidence heard from a number of objectors to the proposal. the issues raised are summarised as follows:

• Out of character with the area;
• Traffic and parking issues;
• Overshadowing impacts;
• Inconsistent with the provisions of LEP 2015;
• Non-compliance with planning controls;
• Stormwater drainage issues;
• Amenity concerns.

1. The council advises that it has assessed amended drainage plans and is satisfied that the design is satisfactory and addresses the concerns of the residents, including overland flow. Conditions of consent have been proposed to address this issue and are agreed by the applicant.
2. Expert town planning evidence was heard from Mr P Grech for the applicant and Mr B Daintry for the council.

Zone objectives

1. The experts agree that, having regard to the authority in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 and Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, that the intent of clause 1.8A of LEP 2015 is to ensure that development is not antipathetic to the objectives of the new R2 residential zone. They say the only relevant objective is to provide for the housing needs of the community within a low density residential environment.
2. They interpret that antipathetic in this context would mean that the development would be so incompatible with the planned character of the locality that it would be considered repugnant or jarring discordant with the zone objectives.
3. They agree the site could be developed under LEP 2015 with three lots (one front lot and two battle axe lots).
4. In his Statement of Evidence, Exhibit F, Mr Grech refers to hypothetical subdivisions and development proposals that he says accord to the current planning controls that apply to the site under the provisions of LEP 2015. Both scenarios proposed a three lot subdivision is one lot fronting Church Street and two rear lots serviced by a battle that handle that runs in a location similar to that of the proposed driveway servicing the development.
5. Two different scenarios are proposed, one that provides for two storey dwelling houses on each lot and the second that provides for two storey attached dual occupancy developments on each lot. He advised the court that the proposed lot sizes excluding the battle axe handle would meet the council's planning controls.
6. The experts agree that each of these three lots may be capable of being developed with one or two storey dwelling houses subject to further applications. This could result in three dwellings, possibly three dwellings with three secondary dwellings or six dwellings within three dual occupancy developments. They also agree that the proposed development provides certainty in regard to the development outcome for the site, locking in five single-storey dwellings on the internal portion of the site that will not overlook or unacceptably overshadow any neighbour.
7. It is agreed that the development would provide an acceptable streetscape outcome and that it provides an acceptable built form outcome.
8. They disagree as to whether the development is low density as referred to within the relevant R2 zone objectives and whether this matters. They also disagree as to whether the site is ideally suited for medium density housing given its distance from the train station.
9. Mr Daintry says that it is unlikely the council would approve the two-storey dual occupancy developments shown in Mr Grech's Statement of Evidence. That is because he considers six larger, two storey dwellings would not occupy the internal allotment without unacceptable urban form and amenity impacts. As the site is located of more than 800 m from the train station it is not an appropriate location to increase residential densities and therefore is antipathetic to the zone objectives. He says Sydney regional and subregional planning is promoting transit oriented and high density closer to railway stations, not within car dependent areas.
10. While he agrees that the streetscape and built form outcome that are proposed are acceptable, Mr Daintry says there is a tension between the objectives and the categorisation of the development as a medium density housing development rather than single dwelling houses. Whilst in cross-examination he agreed that the categorisation is not of itself mean that the development was antipathetic to be zone objectives he remained concerned about the number of dwellings that are proposed to be constructed on the site and drew a distinction between built form and density.
11. He says the desired future character is low density not medium density and that because six dwellings are proposed he does not consider that to be a low density character. He conceded that the proximity of the site to a railway station had no relevance to the objectives of the R2 zone. He agreed there are no unsatisfactory impacts from, or aspects of the development in terms of form or use, that could not be resolved through conditions.
12. Mr Grech says that the relevant consideration is whether the development is antipathetic, or not, to be zone objective, not whether it is a development permitted by the incoming planning instrument. He says that the proposal is not antipathetic to the objectives of the R2 zone and will be compatible and an acceptable fit with the existing and likely future character of the locality.
13. He says while the objective of the R2 zone relevant to the development refers to a low density residential environment there are other objectives and a range of permitted uses that provide a planned outcome that is not simply single detached housing on large lots. LEP 2015 permit, with consent, attached dual occupancy housing on lots with an area of 500 m², a density of one dwelling per 250 m². The proposal has a site density of one dwelling per 303.5 m². The floor space ratio (FSR) of the proposed development is 0.31:1 and consequentially is relatively low scale compared to an FSR of up to 0.73:1 for a dwelling house on a 450 m² lot permitted as complying development (reference clause 3.10(d) of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
14. Mr Grech says there is no fundamental constraint on the site that would preclude an acceptable development proposal in terms of dual occupancy development on the hypothetical alternative battleaxe lots, that this would be a matter of design. Whilst he agrees there would be less incentive to undertake such development because there would be insufficient area to further subdivide the individual dual occupancy development, he says that there are examples of such development proceeding in the area without further subdivision. He considers that form of development would represent the highest development opportunity in the area.
15. Mr Grech says walking distance to a train station is one of a multitude of criteria relevant at the strategic planning stage when planning instruments are formulated, not when assessing a development application made under the planning instruments. Medium density housing was a permitted development on the site under LEP 1988. Indeed dual occupancy housing is permitted throughout the R2 zone under LEP 2015 regardless of distance from any form of public transport. The planning intent of both instruments is to provide housing choice in the residential zone containing the site. Neither LEP 1988 or LEP 2015 provide a higher density residential zone near to the train station. Accordingly he could not conclude that the development is unacceptable because it is not within an 800 m walking distance to the train station.

Site width

1. The experts agree the 26m site width control would likely result in a medium density development that had a central driveway as opposed to a driveway close to a side boundary. However, an alternate development under LEP 2015 would most likely result in a battle axe lots that would have a driveway close to the side boundary with no landscaped setbacks. The acceptability of the driveway can therefore be considered by assessing the difference in impacts between a driveway servicing two lots rather than the proposal. They agree that the only potential amenity impact is the noise occasioned by vehicles using the driveway upon the occupants of No 45 Church Street, otherwise the impact of vehicles are internalised they also agree that a 1.8 m masonry wall constructed along the north western side boundary of the site (adjoining No 45), from the building line, returning to the back of the uncovered parking space of unit 6, would mitigate impacts on that property and this should be required if consent was to be granted. A condition of consent reflecting this requirement has been incorporated into the draft without prejudice conditions of consent, Exhibit 5.
2. They also agree the placement of with the garbage bins on the street furniture for collection is acceptable given the substantial supply of on street parking observed within Church Street and that medium density housing is now prohibited in the zone, therefore no cumulative impacts will occur in the replication of this development.
3. Originally, Mr Daintry was concerned about the volume of traffic generated by the proposal however, on receipt of further information, exhibit G, he was satisfied the impacts of the development would be acceptable. That evidence concludes that the potential increase in traffic generation potential of the site as a consequence of the development proposal is statistically insignificant.

Internal setbacks and landscaping

1. The council's contention relating to the internal building setback provided to unit 1, 2, 3 and 6 which it says was insufficient and did not comply with the DCP requirement of 3m. The experts agree that additional small trees recommended by Mr Grech in his statement of evidence are desirable and this could be conditioned. An alternate development incorporating a more common battleaxe lot driveway would be likely to have no or minimal landscaping and therefore they agreed that the proposal would deliver a better outcome than a battle axe subdivision in terms of the treatment of the driveway access to any internal development of the site. They say the proposed landscape outcome along the driveway is acceptable having regard to be reasonable depth of garden beds in a number of locations, the density of planting proposed, and the provision of additional landscaping along the driveway opposite the dwellings. The landscaping on the opposite side of the driveway is not specifically required by the DCP and is of sufficient depth to accommodate hedged planting to at least fence height.
2. In relation to concerns of the neighbour the experts advise that the mature height of the proposed trees is appropriate and acceptable in the circumstances of the case and would not result in a diverse amenity impacts through overshadowing due to the species and proposed spacing of plantings.

Conclusion and findings

1. At the conclusion of the hearing, all merit matters had been resolved through either the provision of amended plans/information or the imposition of agreed conditions of consent. For that reason, I am satisfied that contentions 2 and 3 are not reasons to refuse consent.
2. Mr Loether, for the council, submits that the site is not an appropriate place for increased densities and whilst it is accepted the development does not result in any adverse impact, the issue is about the type of development. He said medium density housing is not the form of development that is contemplated by the desired future character (DFC) contemplated through LEP 2015. Six dwellings would not be consistent with DFC and would therefore be inconsistent with the objective of the R2 zone.
3. Clause 1.8A of LEP 2015 requires the Court to determine the application as if the plans had not been made. It has the effect of taking the application back to the provision of LEP 1988, however, pursuant to the provisions of Section 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (EP&AAct), I must also have regard to the draft local environmental plan as exhibited. In addition s79C(1)(e) requires me to have regard to the public interest in determining the application. These matters go to the weight that I should give to LEP 2015 as a matter of public interest.
4. In Blackmore, Lloyd J, at [30] states: whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight "to the latter instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further enquiry. It is necessary to look at the aims and objectives of the latter instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).
5. Having regard to the evidence, it is common ground that multi dwelling housing is no longer permissible in the R2 zone however, because of the area of the site, it has potential, consistent with the provisions of the LEP and associated development control plan, to carry out development other than the construction of a single dwelling house on the site. I accept the agreed evidence that up to 6 dwellings could be constructed on the land in the form of attached dual occupancy development following the subdivision of the site into three allotments. I do not consider, as submitted by Mr Daintry, that six dwellings, whether they be categorised as medium density development or 3 x 2 attached dwellings results in any different interpretation of the zone objectives.
6. The LEP would permit the construction of six dwellings on the site in some form and that would be the low density form contemplated by the plan. Accordingly that development would be consistent with the objectives of LEP 2015. I note the agreement of the planning experts that the streetscape and built form of the proposed development outcome is acceptable and therefore conclude that the proposal is not antipathetic to the objectives of the R2 zone. I agree that it is desirable that the development towards the rear of the site is single storey. The development as proposed would be consistent with the anticipated development density within that zone under the provisions of LEP 2015 and because the savings and transitional provisions of that plan provide for consent to be granted, there is no reason to refuse that consent.
7. The orders of the court are: 1. The appeal is upheld. 2. Development Application DA14 - 1964 for demolition and the construction of six dwellings at No 43 Church Street, Riverstone is approved subject to the conditions of consent in annexure A. 3. The exhibits, other than exhibits a, B, C, D, E, H and 1, are returned.

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Sue Morris Commission of the Court 10071 of 2015 Morris (C) (276 KB, pdf)

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