Yessaeian v City of Ryde

Land and Environment Court (NSW)|2018-08-15

Background

On 13 April 2018 a Gateway Determination was made by the delegate of the Greater Sydney Commission in regard to a Planning Proposal prepared by Council. The Planning Proposal provides for a draft LEP which would have the effect of rezoning the subject land (and the rest of the Dunbar Estate) from R3 Medium Density Residential to R2 Low Density Residential under Ryde LEP 2014. Residential flat buildings (as proposed in this case) are prohibited within the R2 Low Density Residential zone in RLEP.
Council indicated in the addendum Statement of Facts and Contentions (Exhibit 3) that the Planning Proposal had been publicly exhibited between 6 June 2018 and 6 July 2018. Council also indicated in Exhibit 3 that "the Secretary's approval would be sought in the week commencing 13 August 2018 with a final report recommending that the plan be made being submitted to a council meeting in September 2018".

Statutory position

Section 4.15 of the EPA Act prescribes matters for consideration in a consent authority's evaluation of a DA. The provisions are well known but relevant to the draft LEP question, it provides: 4.15 Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: … (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority …

Questions which arise

The questions which arise in regard to the draft LEP can be summarised as follows: (1) extent to which draft LEP is to be taken into consideration - this is related to its certainty and imminence (Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 at [33]), and (2) what new attention is required if the draft LEP is to be taken into consideration.

Certainty and imminence of the draft LEP

The Gateway Determination Report prepared by "NSW Planning and Environment" and signed off by "Director, Sydney Region East Planning Services" evidenced conditional support for the Dunbar Estate Planning Proposal. One of the conditions related to the treatment of current DAs. Relevantly here, the report recommendations included (Exhibit E, p7): The proposal should be updated prior to community consultation to: • confirm that a savings provision clause will be added to the Ryde LEP 2014 to ensure the proposal reflects current applications or court hearing processes …
In alignment with the Gateway report, Condition 1 of the formal Gateway Determination, signed by the Delegate of the Greater Sydney Commission provided that: 1. Prior to undertaking community consultation, the planning proposal is to be updated to: a) Include a new savings transition clause to ensure the proposed rezoning does not affect any current development applications or appeal processes b) Address the Greater Sydney Region Plan and North District Plan
Council's Manager Urban Strategies wrote to its General Counsel by memo dated 9 August 2018 indicating the intended approach to the Gateway Determination's "Condition 1": Condition 1 (of the Gateway Determination) was fully complied with prior to the exhibition of the Planning Proposal. Noting that the final wording of the transition clause will be confirmed by Parliamentary Counsel to finalisation of the plan, it is anticipated the wording of the transition clause will be similar to typical provisions of this type, such as: 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. The wording has not yet been confirmed and will be confirmed by PC prior to the finalisation of the plan.
Conditions 5 and 6 to the Gateway determination also have pertinence: Following community consultation and prior to finalising the LEP, the agreement of the Secretary to the proposal's inconsistency with section 9.1 Direction 3.1 Residential Zones is to be obtained. The planning proposal authority is authorised as the local plan-making authority to exercise the functions under section 3.36(2) of the Act subject to the following: The planning proposal authority has satisfied all the conditions of the Gateway determination The planning proposal is consistent with section 9.1 Directions or the Secretary has agreed that any inconsistencies are justified and There are no outstanding written objections from public authorities.
Mr Tomasetti argued that the draft LEP was certain and imminent, and that given the relative certainty and imminence considerable weight was warranted.
Mr Tomasetti also submitted that he believed the intention was to account for Condition 1 of the Gateway determination by using the standard transition clause (common to contemporary LEPs), which is in fact already within the Ryde LEP. It provides as follows: 1.8A Savings provision relating to development applications 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.
There is a body of case law which refers to circumstances where a draft LEP is a "matter for consideration", equivalent to the current provisions at s 4.15(1)(a)(ii) of the EPA Act, and with savings clauses similar to cl 1.8A above (see for example Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289 ('Terrace Tower') [46-47] and Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 ('Blackmore') [22-28]). Provided the threshold test of imminence and certainty is met, and while it is a matter for the circumstances of individual cases, it is not for the notionally draft local environmental plan to be afforded determining weight in the cases.
When I asked Mr Tomasetti how the standard cl 1.8A, alone, would account for the apparent ambitions evident in the Gateway Determination (ie "(to)ensure the proposed rezoning does not affect any current development applications or appeal processes" - as per Condition 1(a) in the Gateway determination), he pointed out that the report recommendation was prepared without input from Parliamentary Counsel. My appreciation of this and further commentary was that Mr Tomasetti thought it not realistic, or at least likely, in legal terms to think that anything other than the standard savings clause (ie cl 1.8A) would or could be provided for with the LEP changes afoot here. Mr Palmer, for me helpfully, called it a suggestion of "infelicitous drafting" by those preparing the Gateway Report and determination.
Mr Palmer's arguments to suggest the draft LEP was neither certain or imminent were twofold. First, that the apparent State government level planning intentions to not affect the subject DA, evident in the Gateway Report and determination, should be treated at face value. Here I understood the suggestion to be that the State government-level planning officials were concerned that the planning system support a proponent's reasonable expectations about development potential for a site including its reliance on zoning particulars when preparing and lodging a DA. Mr Palmer cited the objects of the EPA Act, in particular objective (c) at s 1.3 of the Act which is: …to promote the orderly and economic use and development of land
Mr Palmer's second point was that there was no way to know whether the Secretary would be satisfied with the inconsistency of the proposal with the Act's provisions for Ministerial Directions at s 9.1, and in particular Direction 3.1 Residential Zones which in part provides: (5) A planning proposal must, in relation to land to which this direction applies: … (b) not contain provisions which will reduce the permissible residential density of land.
Mr Tomasetti's submission on the second point was that the draft LEP would be considered of "minor significance" and thus be seen as justifiably inconsistent by the Secretary under cl (6) of Ministerial Direction 3.1.
While I would think it quite likely that the scale of reduction of "permissible residential density" involved here could be seen as of minor significance to the Secretary, but in part mindful of Makita as referenced above, there is no particular evidence presented to suggest a high degree of certainty on this.
Of more concern to me in regard to the question of the imminence and certainty of the draft LEP is what I see as a "loose end" in regard to the direct question of the effect of the intended zoning change on pre-existing DAs. It is clear that a factor in the decision of the State-level planning officials to support the draft LEP is that "a new savings transition clause" be included in the draft LEP which has the effect of "(ensuring) the proposed rezoning does not affect any current development applications or appeal processes". This is a precondition of the Gateway determination (Condition 1(a)), and while Condition 6 of the determination authorises Council to exercise the plan-making function under s 3.36(2) of the EPA Act, it is conditional on satisfying the conditions of the determination (including Condition 1). The Council memo of 9 August 2018 [56] implies an intention to use the standard savings clause (cl 1.8A). Then, the case law indicates that cl 1.8A would not ensure that pre-existing (ie "current") DAs are not affected by "certain and imminent" draft LEPs [60]. This might be thought of as the reason behind the Gateway determination Condition 1 requirement for a "new" savings transition clause.
Mr Tomasetti suggested he was not aware in his experience of other than standard savings clauses in contemporary LEPs and no doubt one of the intentions of the Standard Instrument (Local Environmental Plans) Order 2006 is to increase the level of LEP standardisation. However, it is reasonable to consider at this point that the possibility at least remains that a "new" savings provision would be included, with the intended effect as outlined in the Gateway determination (while I have no familiarity with the circumstances behind it, or indeed whether there are any other instances where this occurs, I am aware that there is an additional (site specific) savings-related provision in Randwick Local Environmental Plan 2012 at cl 1.8A(2)).
The certainty of the draft LEP content remains a matter of conjecture. The content matter which his under question is directly pertinent to the current application - that is, the question of the weight to be applied to the draft LEP itself. In addition the draft LEP is only "reasonably imminent" according to Mr Tomasetti, with a gazettal target date of April 2019 suggested. In the circumstances, and in particular in regard to the question of certainty of content, it is appropriate to consider the draft LEP provisions as only of minor significance.

What new considerations come forward if the draft LEP is to be taken into consideration?

Even as a matter of minor significance the draft LEP requires some attention. Mr Tomasetti referenced Terrace Tower, and in particular comments from the former Chief Justice at [7]: Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.
The question of local (neighbourhood) character is considered in the joint reports of the planning and urban design experts. There were two reports. The first report considered circumstances without the existence of the draft LEP, the second report took account of the draft LEP.
The experts were aware of the local character compatibility test arising at cl 16A of SEPP ARH.
It was common ground in the first report that the proposal satisfied the compatibility criteria evinced in the commonly referenced case Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 ('Project Venture'). Project Venture asks two questions: a) Is the proposal's appearance in harmony with the buildings around it and the character of the street? b) Are the proposal's physical impacts on surrounding development acceptable? In response to a) above, the experts agreed that "the proposal's appearance is in harmony with the buildings around it and the character of the street." (Exhibit K, p6-7). In response to b) above, the experts agreed that the proposal's physical impacts (having specific regard to each of the areas of: overshadowing, visual privacy, acoustic privacy, visual impact) were "considered acceptable" (Exhibit K, p7-8).
In the second planning/urban design expert report, the experts presented evidence to assist the Court were it to decide weight was to be given to the draft LEP (to change the zoning from R3 to R2). The report noted the objectives for each of the zones: LEP Objectives Zone R2 Low Density Residential 1 Objectives of zone • 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 provide for a variety of housing types. 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. • To encourage revitalisation, redevelopment and housing choice in a residential area.
The experts noted that the key differences in the objectives are the words 'low density residential environment' versus 'medium density residential environment" and that the R3 zone encourages 'revitalisation, redevelopment and housing choice in a residential area'. Both zones allow bed and breakfast accommodation, child care centres, community facilities, dwellings, multi dwelling, boarding houses, dual occupancy (plus some other additional uses). The R3 zone also allows RFBs and attached dwellings among other additional uses. Other particulars of the differences do not require attention here.
In the broad, Ms McCabe indicated no change to her position of support for the proposal in regard to its local character compatibility if the dLEP were to be given weight. Council's experts presented a different position. Mr Tesoriero's opinion was that the proposal was not compatible with "the desired future character of the R2 Low Density Residential Zone". Ms Morrish also referenced different "desired future character" expectation with an R2 zone, and referenced various DCP particulars to support this position. She suggested: The tolerance to greater household intensity and site coverage is a direct response to the objectives and typologies that might occur within the visual catchment in the future and that is different between the R2 zone and the R3 zone.
In considering the expert evidence, and briefly here given the weighting I give to this consideration, it seems to me that the local setting is already better described as a "low density residential environment" than a "medium density residential environment". I note the evidence (notwithstanding the basement parking question addressed below) that the current proposal has been subject to redesign of its physical form to address character concerns. In addition I note that multi dwelling housing, boarding houses, dual occupancy are among the permissible uses in the R2 zone as well. I am not convinced that the proposal would undermine the objectives of the R2 zone in a substantial way, insofar as the matters covered by the planning/urban design experts are concerned. Clearly, the current LEP is the operative environmental planning instrument for this matter. But having considered the draft LEP, I see no issues arising which might significantly influence the evaluation of the subject application.

Lay objections

During the site view there were submissions from a number of neighbours with particular amenity impact concerns. There were also submissions that the proposal would be an overdevelopment of the site and that it would be incompatible with the low density residential character of the street. These arguments were also put by some objectors not personally impacted by the proposal. The objections on these more general grounds commonly referenced the fact that a zoning change was proposed and was near completed. Here a reference was also made proposals for very large amounts of apartment development closer to major transport hubs and Macquarie University..
I have considered the draft LEP and the specific question of character compatibility above ([69]-[76]). I have also given consideration to cl 16A of SEPP - ARH and am mindful that this test is of compatibility rather than replication. I find, on the evidence, the proposal generally acceptable in regard to that matter. In using the term "generally", I recognise there is something of a relationship between local character and the basement parking issue considered further in the conclusions below.
The neighbours raised objections in regard to overshadowing, privacy, visual massing and inconvenience associated with loss of on-street parking. I note the particulars of the detailed analysis of such factors in the first planning/urban design joint report (Exhibit K), and the agreement reached that the proposal was acceptable under current controls (which as discussed above is the pertinent test here). In coming to this conclusion I also the stated position of preference in oral evidence of fencing (over screen planting alone) as a visual screen to the properties at Sobraon Road.

Affordable housing

In final submissions, Mr Palmer referenced another object of the EPA Act. This was at s 1.3(d) of the Act: to promote the delivery and maintenance of affordable housing,
The submission I believe was that the proposal not only provided affordable housing under SEPP - ARH, but was also providing for somewhat higher density forms of development in the locality which would be more affordable than lower density forms. This was seen to directly align with this affordable housing object of the EPA Act.
Mr Palmer also referenced a Council meeting minute dated 22 August 2017 included in Exhibit G which was directly supportive of provision of more affordable (including 'key worker') housing in the local government area.
Mr Tomasetti's submission in response was that affordable housing was attended to by SEPP - ARH and that the benefits of the SEPP were already applied to the development.
I will consider this matter in the conclusions below.

Conclusions

A central concern with the proposal is its non-conformance with Council's DCP with respect to on-site parking. I note the authorities on the application of DCPs presented at the hearing in particular Zhang v Canterbury City Council [2001] NSWCA 167 ('Zhang') and Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 ('Stockland'). Mindful of Zhang, Mr Tomasetti referenced the need to give "proper genuine and realistic consideration of the DCP" [62] which ought to "serve as a focal point" for deliberation on the DA [77].
Mr Palmer also referenced Zhang, and its emphasis on how DCPs must be distinguished from LEPs. That is to say that while LEPs are "determinative" and a contravention (in principle) must require refusal, DCPs are discretionary instruments, which need to be taken into account, but among other matters [74]-[75].
I turn to the findings of the former Chief Judge in Stockland. While here talking about adopted "urban design controls", McClellan CJ found: Unless cogent reasons suggest otherwise, a council is also entitled to expect the Court to require development to conform to the adopted parameters.
Under s 4.15(1) of the EPA Act, clearly DCPs are "matters for consideration" only and a non-conformance is not of itself determinative. There may often be "cogent reasons" why it would be inappropriate for the Court to require DCP parameters to be met. Stockland provides advice on the correct approach to consideration of, and weight to be given to, DCPs. Four of the five principles are relevant here and I reproduce them below. The consideration of them (in particular, what I below nominate as Principle 3) also allows for a weighing together of some of the other issues at hand in the hearing. 1. A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation. 2. A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied. 3. A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies. 4. Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.
In regard to what I reference as Principle 1 above it can be assumed the DCP was prepared in accordance with public participation requirements of the EPA Regulation, although there was no evidence on to what extent the community interested itself in matters of parking detail.
In regard to Principle 3 above, two issues arise. First, is the applicants approach to identify points of "conflict" between the DCP and the AS and to argue weight be given to AS. While it is clear that the AS is less onerous than the DCP on the question of turning paths, the AS was not unequivocal in its support for 3-point turn movements and, in involving four-point turns, it was not clear that the application "complied" with the AS in any event (with some of the applicant's traffic evidence misinterpreting the AS documentary content). There was also the documentary evidence to support weight going towards the DCP over the AS in any event.
Second, is in regard to Mr Palmer's submissions about affordable housing. One inference being that the proposal had the potential to help achieve the particular "affordable housing" object of the EPA Act, but also Council's own affordable housing policy aims. On this I note Mr Tomasetti's point that the proposal has already received an FSR bonus for its affordable housing component under SEPP - ARH. It seems reasonable to adopt a position that (short further concessions under this or another instrument) a proposal be required to still achieve other planning parameters, such as parking, where such bonuses are adopted.
I have some interest in the point that this higher density housing can assist affordable housing more generally, including the reference in the Council minute [82] supporting affordable housing in the local government area. However, this minute was only raised in final submissions and not subject to sufficient examination, nor was there any planning evidence to support this proposal as supporting affordable housing beyond the SEPP - ARH aspects.
My conclusion in regard to Principle 3 is that there are insufficient particulars in the evidence to provide what might be "cogent reasons" to find that the DCP parking controls prompt "an inappropriate planning solution".
Principles 2 and 4 above are concerned with the significant issue of consistency in the application of DCPs. Again there was no evidence provided to suggest that Council had been inconsistent in the application of the DCP parking provisions.
To conclude, the Council's DCP sets a certain standard for parking which has not been met by the application. The non-compliance is in my view significant, with the basement carparking area, as proposed, providing constrained rather "readily accessible" parking (as intended by the DCP), with adverse consequences for future residents and flow-on effects for on-street parking street. Zhang points to the need for DCPs to be considered as a "fundamental element" in, or "focal point" to, the DA evaluation process, but that non-compliance does not automatically mandate a refusal. I have considered the guidance from Stockland on the proper way to apply the DCP in this instance and find that there was insufficient substantiation to suggest that conformance with the DCP's parking access provisions not be required. I have also considered this DCP non-compliance in the context of the wider requirements of s 4.15(1) of the EPA Act, and find that the application does not warrant approval in the circumstances.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. LDA2017/0167 for a residential flat building at 6 Lexcen Place Marsfield is refused. 3. The exhibits are returned with the exception of Exhibits A, 3 and 6.

P Walsh 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 September 2018

Evaluation

The circumstances in regard to the basement parking in this case are one where experts on either side bring largely opposite opinions, with an important question whether FDCP or AS provisions should prevail. Mr Tomasetti referred me to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ('Makita'). Makita's particular point of interest to me is the emphasis it provides on the Court taking direct account of available framing "criteria" (documentary or otherwise) used by the experts, this to assist in testing the accuracy of expert conclusions [59].

At a glance

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Judgment (9 paragraphs)

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