Zhang v City of Ryde Council

Is there an inconsistency between LEP 2010 and SEPP Affordable Housing?

The parties disagreed whether there was an inconsistency between LEP 2010 and SEPP Affordable Housing. The council maintained that even though the applicant satisfied the floor space ratio (FSR) requirement in cl 13 of SEPP Affordable Housing, the development does not satisfy the density controls in cl 4.5A of LEP 2010. Clause 4.5A provides density controls specifically for Zone R2 by way of a ratio of the number and size of dwellings to site area. The relevant parts of cl 4.5A are: 4.5A Density controls for Zone R2 Low Density Residential (1) The consent authority must not consent to the erection of multi dwelling housing (attached) on land in Zone R2 Low Density Residential unless: (a) the site area for the building is not less than: (i) for each 1, 2 or 3 bedroom dwelling - 300 square metres, and (ii) for each 4 or more bedroom dwelling - 365 square metres, and
The council argues that as the density control in cl 4.5A for Zone R2 land (in LEP 2010) provides for a ratio of the number and size of dwellings to site area rather than a ratio of gross floor area to site area (in SEPP Affordable Housing), there is no inconsistency between the two standards so compliance with both standards is required.
The development provides for 4 dwellings however an assessment under cl 4.5A(a)(i), given a site area of 1101.7 sq m, results in the site having a potential for only 3.67 dwellings. While cl 4.6 of LEP 2010 allows for a variation to the standard in cl 4.5A, no written request was provided so the non-compliance must see the application refused.
The applicant argued that there is an inconsistency between cl 4.5A of LEP 2010 and cl 13 of SEPP Affordable Housing. It is argued that both standards relate to the general matter of the amount of development even though they are expressed in different ways. It was also argued that if the councils approach were to be adopted then this approach would be inconsistent with the aims in cl 3 of SEPP Affordable Housing, particularly aim (b) that seeks "to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards".
On the basis that there is an inconsistency, the applicant submits that cl 8 of SEPP Affordable Housing is activated, so cl 13(2) of SEPP Affordable Housing prevails over cl 4.5A of LEP 2010. There was no dispute that the FSR of the proposal (0.43:1) is less than the "existing maximum floor space ratio for any form of residential development on the land".
The framework for consideration is set out in Succar v Bankstown City Council [2012] NSWLEC 1255, where Dixon C states at [16] - [18]: 16. The AH SEPP is not a code. It is a Policy which aims to provide a consistent planning regime for the provision of affordable housing: cl 3(a); and, to facilitate the effective delivery of new affordable housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non discretionary development standards: cl 3(b). It sets out non-discretionary development standards in cl 14 and design considerations in cll 15(1) and 16 and 16 A. 17. The fact that the AH SEPP enlivens the power of a consent authority to determine a development application for affordable housing on land to which the AH SEPP applies does not mean that the power is to be exercised in only one way; the grant of a consent. The consent authority has a discretion, which must be exercised in accordance with the law and having regard to the merits of the application. In exercising the discretionary power in s 80(1) of the Act, the consent authority must consider the relevant matters in s 79C(1) and ss 79C(b) to (e) of the Act: Australian Lifestyles Corporation Pty Ltd v Wingecarribee Shire Council [2008] NSWLEC 284 per CJ Preston at paras [34] - [41]. Therefore, in my opinion all relevant planning instruments must be considered and in the event of an inconsistency cl 8 prescribes that the Policy is to prevail. 18. This approach is consistent with the general principle discussed by the Court in GW Rothwell & Associates v North Sydney Council [2000] NSWLWC 116 at [28] of trying to give effect to both provisions if possible: "There is a general reluctance by the courts to find that there is an inconsistency between two statutory provisions if both provisions can be given effect." .
In this case. I accept that there is no inconsistency between cl 4.5A of LEP 2010 and cl 13(2) of SEPP Affordable Housing. While both have a broad role in determining the amount of development on the site, they do it in very different ways. Mr Minto, the applicants town planner, described cl 4.5A of LEP 2010 and cl 14(2) of of SEPP Affordable Housing as two different tools to achieve the same outcome of the setting the amount of development and built form on the site. Mr Tesoriero, the council's town planner described the two controls as being different with cl 4.5A addressing bulk and scale and whereas cl 14(2) addresses the number of dwellings on a particular sized lot.
On the question of whether there is an inconsistency, I accept the evidence of Mr Tesoriero. As stated in Rothwell, there is a general approach that allows a finding of inconsistency if both provisions can be satisfied. In this case, cl 4.5A of LEP 2010 places limitations on the number of dwellings based on the lot size. A development is prohibited if the site area is less than 300 sq m for each 1, 2 or 3 bedroom dwelling. The site has an area of 1,011.7 sq m whereas the site would need an area of 1200 sq m for the four dwellings proposed. There is clearly no opportunity to increase the area of the site so for the approach identified in Rothwell, both provisions cannot be satisfied. While this can potentially be remedied through a written request under cl 4.6 of LEP 2010, no written request was provided.
This needs to be compared to cl 14(2) of SEPP Affordable Housing where limitations are placed on the amount of gross floor area (irrespective of the number of dwellings) when compared to the site area. There was no disagreement that the FSR in cl 14(2) of SEPP Affordable Housing was satisfied.
As four dwellings cannot be erected on the site under cl 4.5A of LEP 2010 because of the deficiency of the site area, the development is prohibited and must be refused.
For completeness I will briefly deal with the remaining issue of the impact on the character of the area.

The evidence

Clause 30A is a condition precedent to the granting of consent. Clause 30A requires the Court to make a finding on "whether the design of the development is compatible with the character of the local area". A positive finding enlivens the power to consider the merits of the application and a negative finding must see the application refused and the appeal dismissed.
There was general agreement that the character test requires consideration of the following matters:

what is the "local area"?
what is the character of the "local area"?
is the design of the proposed development compatible with the character of the "local area"? What is the "local area"?

The experts accept the approach in Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 where" local area" is described as: ….principally the visual catchment in which the development will be viewed…. The wider catchment is also relevant….
Mr Minto, the applicants town planner, and Mr Tesoriero, the council's town planner generally agree on the local area for the purposed of cl 30A as being the area that is along Blaxland Road to the north and south of the site and on the opposite side of Blaxland Road. The local area also includes part of Denistone Road that runs parallel to Blaxland Road at the rear of the site. However, Mr Minto considers that less emphasis should be given to those properties located to the rear on Denistone Road which do not directly adjoin the site and that a slightly wider presentation to Blaxland Road should be included.
With the benefit of a site inspection, including the local area identified by Mr Minto and Mr Tesoriero, I agree with the conclusions of Mr Minto. In my view, the local area is best described as the area that is generally along Blaxland Road to the north and south of the site and on the opposite side of Blaxland Road. While it is not critical to the application, the area in Denistone Road that runs parallel to Blaxland Road at the rear of the site is sufficiently visually distant to have little value in any assessment of local character, as well as having a number of converted dwellings for medical practitioners associated with Ryde Hospital, directly opposite. What is the character of the "local area"?
There was agreement that the "local area" was predominantly single storey residential development but with other multi dwelling housing development that have a maximum dwelling density of three dwellings per allotment, aside from that of the recently approved multi dwelling house development at 496 Blaxland Road which has four dwellings. Is the design of the proposed development compatible with the character of the "local area"?
The experts agreed that the word "compatible" had the meaning attributed to it within Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 where it states: Planning principle: compatibility in the urban environment 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.
Mr Tesoriero states that the proposal's failure to comply with dwelling density, front setback, rear setback and non-preferred location for multi-dwelling housing development results in an unacceptable visual impact on surrounding development and the streetscape which leads to a proposal that is inconsistent with the character of the R2 Low Density zone. Even with further amendments that provided compliance with the height, front setback and side setback Mr Tesoriero maintained his opposition.
Mr Tesoriero further considers that the proposed development is inconsistent with the appearance of other buildings around it and the character of the street. Mr Tesoriero's character assessment of the local area has identified that the vast majority of buildings in the local area are single storey. Mr Tesoriero considers that the resultant impact is a discordant development which cannot be supported.
Mr Minto states that the proposal provides for a development outcome which is compatible with the character of the surrounding area. Compatibility is not about sameness but rather about a proposals ability to exist in harmony with its surroundings. Compatibility also relates to the acceptability of a proposal's physical impacts on surrounding development.
Mr Minto identifies the following reasons for his conclusion as:

multi-dwelling housing is permissible within the R2 zone,
the visual catchment of the site contains a range of low density residential developments including one and two storey single dwelling houses, dual occupancy development, villa development and a SEPP Affordable Housing development (which is currently under construction),
the site is not located within a Heritage Conservation Area,
there is no restriction on the demolition of the existing dwelling house,
there is no restriction on the ability to replace the existing single storey dwelling house with a two storey built form (noting that a two storey dwelling house could be erected as Complying Development under the Exempt & Complying Development Codes SEPP),
amendments have resulted in a development that satisfies the height, front and side setback requirements, and
there are no issues in relation to overshadowing or a loss of privacy.

The significant difference in the approaches of Mr Minto and Mr Tesoriero is the form of development that should be considered in determining the "character of the local area". Put simply, Mr Minto adopts the form of development anticipated by the council's planning controls whereas Mr Tesoriero adopts the existing form of development.
Even though the existing character is predominantly single storey residential, I do not accept that it is reasonable to base any assessment of character solely on this form of development. For example, as the council's planning controls allow a 2 storey residential dwelling with an FSR of 0.5:1 (compared to the proposed FSR of 0.43:1), it would be difficult, if not impossible to reject a development application for a 2 storey dwelling because the character of the area was predominantly single storey. The same approach would apply to the proposed development.
The reasons for Mr Minto's conclusions are also valid. With the further amendments, the proposed development satisfies the planning requirements for height, front and side setback. There is no reason why sufficient landscaping could not be provided in the setback areas to establish a suitable landscaped setting for the development. The non-compliance with the rear setback is not a sufficient reason to conclude that the development was not compatible with local area nor is the fact that there may be three or four dwellings, if there is a significant compliance with the council's planning controls that address building form and character.
This approach is consistent with the Rule of Thumb in cl 3 Impacts on Streetscape in Seniors Living Policy: Urban Design Guidelines for Infill Development where it states: Respond to council planning instruments that specify the character or desired character for the area
For these reasons, I am satisfied that the design of the proposed development is compatible with the character of the local area.

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (4)