Land and Environment Court New South Wales Medium Neutral Citation: Nakhoul v Canterbury-Bankstown Council [2020] NSWLEC 1320 Hearing dates: 9-10 July 2020 Date of orders: 23 July 2020 Decision date: 23 July 2020 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The applicant is granted leave to amend the development application by relying on the plans and BASIX certificate referenced in conditions at Annexure A. (2) The applicant is granted leave to amend the application by relying on the amended written request under clause 4.6 of Bankstown Local Environmental Plan 2015, dated 9 July 2020. (3) The applicant's written request under clause 4.6 of Bankstown Local Environmental Plan 2015 is upheld. (4) The appeal is upheld. (5) Development Application 1087/2019 seeking development consent for the demolition of existing structures and construction of a two-storey attached dual occupancy, and associated works, and Torrens title subdivision at 40 Angus Crescent, Yagoona, is approved subject to the conditions at Annexure A. (6) Exhibits are returned with the exception of Exhibits 1, A, B, C, D and E. Catchwords: DEVELOPMENT APPLICATION – dual occupancy – contravention of lot width standard – corner block – internal amenity – precedent Legislation Cited: Bankstown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Cases Cited: Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177 Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Apartment Design Guide Bankstown Development Control Plan 2015 Land and Environment Court, 'COVID-19 Pandemic Arrangements Policy' Category: Principal judgment Parties: Chris Nakhoul (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: J McKelvey (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Madison Marcus Lawyers (Applicants) Canterbury-Bankstown Council (Respondent) File Number(s): 2020/118267 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the refusal of Development Application 1087/2019 ('application') by Canterbury-Bankstown Council ('Council'). The application is seeking development consent for the demolition of existing structures and construction of a two-storey attached dual occupancy with Torrens title subdivision at 40 Angus Crescent, Yagoona, legally described as Lot 386 in DP 13125 ('site'). The site and locality 1. I rely on Council's Statement of Facts and Contentions ('SOFAC', Ex 1) filed 15 May 2020, and certain photographic material provided by the parties, for much of the material in this and the following descriptive section. 2. The site is a corner allotment having a primary frontage (eastern) of 10.433m to Angus Crescent and secondary frontage (southern) of 41.16m to Ward Street. The site has a splay of 2.185m at its south-eastern corner. The western (rear) boundary measures 14.72m, and the northern (side) boundary measures at 42.62m. The subject site has a total area of 566.5m2. 3. The site slopes from the rear (west) to the front and Angus Crescent, with a fall of approximately 2.18m. 4. At present, the site is occupied by a single storey timber frame dwelling house which fronts Angus Crescent. A detached single garage is located towards the rear of the site with access from Ward Street. A metal cladding fence runs along the Ward Street side boundary behind the building line. Vegetation within the site is very limited. Two trees are located on the southern and eastern nature strip. 5. Single storey dwellings abut the site to the north and west, with a single storey secondary dwelling located to the immediate west. The wider site environs is characterised by detached single dwellings and dual occupancies. Secondary dwellings and multi dwelling developments are also found in the broader locality. The proposal 1. The application proposes: * Two storey, part brick part externally clad, flat roof, dual occupancy; attached at the ground level and with spatial separation at the upper level. * Each dwelling would be serviced by attached single garages, one accessed from Angus Crescent and one accessed from Ward Street. * Dwelling 1 (fronting Angus Crescent) would contain, at the ground floor, a study, living room, dining room, kitchen, and a combined laundry and bathroom. Dwelling 2 (fronting Ward Street) would contain, at the ground floor, the same rooms with the exception of the study. Both dwellings propose a first floor containing three bedrooms, a bathroom, an ensuite to the master bedroom, and a front balcony accessible off one bedroom. * Each dwelling would have private open space areas of 80 m², separated by a dividing fence. * Torrens title subdivision of the two dwellings is proposed. Proposed Lot 1 (the eastern lot) has a site area of 316.7 m². Proposed Lot 2 (the western lot) has a site area of 251.6 m². Planning controls 1. The site is zoned R2 Low Density Residential under Bankstown Local Environmental Plan 2015 ('LEP'). This development is permissible within the zone. 2. There are specific controls for dual occupancy development in the LEP which are central to the contentions raised by Council and are considered in the examination of evidence below. 3. Bankstown Development Control Plan 2015 ('DCP') also applies and is relevantly considered in the evidence. Procedural background 1. The hearing was conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy, which is intended to put into effect the State's public health orders regarding social distancing. More particularly, the hearing was conducted as a "virtual court room" arrangement under the "Microsoft Teams" platform. 2. Certain photographic material was provided by the Council, the preparation of which involved some dialogue with the applicant's representatives, which assisted in the Court's appreciation of the site context. 3. Exhibit 1 indicates that no submissions were received in response to the public notification of the DA, and no lay submissions were made in the hearing. 4. I note here that the experts providing evidence in this matter are as listed in the table below: Expert Expertise For J Wood Planning Applicant C Phu Planning Council Issues 1. After leave was granted to amend the application, to provide for certain alterations to the subdivision configuration and changes at the ground floor of each dwelling, Council pressed four contentions: (1) lot width, as a jurisdictional gateway, (2) density and site suitability, (3) amenity for future residents, and (4) public interest, including precedent. Lot width Jurisdictional issue 1. Clause 4.1A(2) of the LEP provides as follows: (2) Development consent must not be granted to development for the following purposes— (a) a dual occupancy (attached) on a lot in Zone R2 Low Density Residential unless the lot has an area of at least 500 square metres and is at least 15 metres wide at the front building line, 1. Under the Dictionary to the LEP, "front building line" means: (a) for a lot that has only one road frontage—the line the consent authority is satisfied is the minimum setback a building should be from the road alignment, or (b) for a lot that has more than one road frontage—the shortest of the lines (excluding an access handle or right of way for access) that can be calculated under paragraph (a). 1. Clause 4.8, Part B1 – Residential of the DCP provides as follows: "The minimum setback for a building wall to the primary road frontage is: (a) 5.5 metres for the first storey (i.e. the ground floor); and (b) 6.5 metres for the second storey" 1. It is agreed that the subject site has a width of 12.4m when measured at the front building line as defined. The proposal therefore contravenes cl 4.1A of the LEP which requires a minimum of 15m. 2. Clause 4.6(2) of the LEP opens up a capacity for approvals to be granted notwithstanding such a contravention and provides (relevantly): (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. 1. The permissive power at cl 4.6(2) is subject to the restrictions in cl 4.6(3) and (4): (3) Consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating— (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless— (a) the consent authority is satisfied that— (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. 1. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power under cl 4.6(2) to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 ('Initial Action') at [14]). The first opinion is in regard to a written request from the applicant seeking to justify the contravention of the development standard, in particular, whether it has adequately addressed the two matters required to be demonstrated at cl 4.6(3). The second opinion requires me to make my own finding of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out. 2. I note here, mindful of cl 4.6(4)(b) of the LEP, that there is no requirement for me to seek the concurrence of the Secretary (under s 39(6) of the LEC Act), but nonetheless I would mention that I do not see the circumstances here as raising any matter of significance for State or regional environmental planning. 3. The applicant was granted leave to rely on an amended written request prepared by Think Planners and dated 9 July 2020 (Ex D). The written request opened the door to the permissive powers of cl 4.6(2). Considering cl 4.6(4)(a)(i) of the LEP Whether compliance is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of the LEP) 1. In Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 ('Wehbe'), Preston CJ, summarised the common "ways" in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case. The written request concentrated, relevantly, on the first Wehbe way. That is, demonstrating that the underlying objectives of the development standard are achieved notwithstanding non-compliance with the standard. 2. The objectives of the lot width standard, as nominated at cl 4.1A(1) of the LEP, are as follows: (a) to ensure that lot sizes are sufficient to accommodate development that is consistent with the objectives and planning provisions for dual occupancies, (b) to minimise any likely adverse impact of development on the amenity of the area. 1. The written request argued that the first objective, concerned with the sufficiency of the lot size for dual occupancy, is achieved for three central reasons. The first reason is because the lot size is larger than the minimum area required for dual occupancy development. That is, cl 4.1A(2)(a) requires 500m2 whereas the site is considerably larger, which, in terms of the quest to accommodate dual occupancy development, is suggested as "offsetting" the otherwise requirement for strict compliance with the prescribed width at the building line. The second reason is because the site is a corner block. The argument is that lot width is more constraining for midblock parcels, when compared to this proposal which orients to the longer secondary side boundary. The third suggested reason is that the proposal is compliant with other planning controls for density, setbacks, parking, private open space and landscaped area. There is sufficient rationality to the reasons cited to satisfy me that the written request demonstrates that the first objective of the standard is achieved. 2. The written request argues that the second objective of the standard is achieved because there has been a capacity, notwithstanding the site width, for development to be "enabled" which minimises adverse amenity impacts. The written request argues there is no overshadowing or visual privacy impacts and that the proposal would have a positive effect on the local visual character due to the extent of streetscape activation. I agree and am satisfied that the written request demonstrates that the second objective is achieved. 3. The written request adequately establishes that compliance with the development standard would be unreasonable and unnecessary in these circumstances (cl 4.6(3)(a) of the LEP). Sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of the LEP) 1. The written request also adequately establishes that there are sufficient environmental planning grounds to justify the contravention of the standard (cl 4.6(3)(b) of the LEP). A number of arguments are cited, but for me the most pertinent are: (1) that were the site 2.6m wider (ie in compliance with the standard), there need be no discernible difference in terms of the form of the building; or put another way, under the current (contravening width) at the building line, and due to the fact that the site is a corner block, the built form fits in with the current and desired future character of the locality, and (2) the contravention is justified because the proposal furthers certain objects of the EPA Act (at s 1.3), noteworthy for me were: (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing. 1. As a consequence of my findings above, I am satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated under cl 4.6(4)(a)(i). Considering cl 4.6(4)(a)(ii) of the LEP 1. I am also satisfied that the proposed development is in the public interest because it is consistent with the objectives of the relevant standard and the objectives for development within the R2 Low Density zone under the LEP. The matters raised in the written request (as considered above), are sufficient for me to be satisfied that the development is consistent with the objectives of the lot width standard. 2. The zone objectives are listed below (I have numbered them for convenience in this judgment): [1.] To provide for the housing needs of the community within a low density residential environment. [2.] To enable other land uses that provide facilities or services to meet the day to day needs of residents. [3.] To allow for certain non-residential development that is compatible with residential uses and does not adversely affect the living environment or amenity of the area. [4.] To allow for the development of low density housing that has regard to local amenity. [5.] To require landscape as a key characteristic in the low density residential environment. 1. Pertinent are the first, fourth and fifth objectives. 2. It is self-evident that the proposal provides for housing needs. The proposal's compliance with development standards relating to height and floor space ratio, and the fact of the surrounding low density environment, convince me that the proposal is consistent with the first objective. 3. There is no contention that the proposal brings unreasonable adverse impact on local amenity, a matter I have also given consideration to above. The proposal is consistent with the fourth objective. 4. The landscape scheme for the proposal (Ex C) demonstrates an intention for landscape to be a feature of the proposed development. The plans indicate significant levels of landscaping within the rear private open space, but also within front setback areas. The latter, in particular, will contribute to the public domain, and result in a significant improvement to the current setting. The proposal is consistent with the fifth objective. 5. The proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP are met. 6. The states of satisfaction required by cl 4.6 of the LEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the lot width development standard. 7. The merits of the lot width come into consideration in the matters evaluated below. Density and site suitability 1. Council contended that the proposal represents an overdevelopment of the site and would have an adverse impact on the amenity of the local area. The nominated particulars for this contention at the commencement of the hearing, that is prior to the plan amendments, were as follows (Ex 1, p11): "a. The proposed development is not suitable for the subject site, having regard to the impact the proposed development will have on the low density character of the area. b. The proposed development fails to meet the minimum allotment width requirement, wall height standard, private open space, setback and access requirements. Accordingly, the site is not suitable for the proposed development." 1. The amended proposal now complies with the DCP's controls requiring private open space of at least 80m2 (clause 4.14, Part B1). The amended proposal also complies with the wall height standard and building setback requirements. 2. It is understood that the "access" reference in the contention above is concerned with clause 4.12 of Part B1 of the DCP which reads as follows: The minimum setback between a dual occupancy and the side boundary must be clear of obstacles such as a hot water unit, waste storage area, storage shed and the like. 1. The landscape plan (Ex C) shows the waste bins as located in the side boundary setback area. I accept Mr Wood's interpretation of this clause, which notes that the waste bins are mobile and can be located elsewhere, and that this clause is concerned, principally, with fixed obstructions to side access. 2. Mr Phu's written evidence indicated his main concern with regard to "overdevelopment" related to the proposal's non-compliance with private open space (no longer applicable after plan amendments) and lot width requirements (Ex 2 par 57). He links these overdevelopment concern with the potential for future developments on similarly constrained lots in the locality. I have considered the cl 4.6 written request in regard to lot width contravention above, finding favourably, and opening the door to a merits consideration. I further consider the merits when the issue of precedent is considered below. Amenity for future residents 1. Council cited a list of concerns with the proposal, in regard to the amenity which would be enjoyed by future occupants, which are suggested as principally resultant from the fact that the site does not meet the required minimum lot width of 15m. The concerns related to the ground floor design and the listing is as follows (Ex 1, p21): "i. Lack of internal garage access for Unit 2. ii. Interference by the stairs in the garage of Unit 1 on the minimum 5.5 metre x 3.0 metre car parking space required by the BDCP 2015. Resolution of these stairs within the dwelling would further constrain the already narrow entry area. iii. Lack of useable/furnishable walls in the combined living and dining area of both dwellings. iv. Lack of any pantry space for the kitchen in both dwellings. v. Inadequate allowance for a fridge in the kitchen in both dwellings. A typical fridge depth would further constrain the already narrow kitchen entry area. vi. Inadequate provision of laundry space in both dwellings, being located within the ground floor bathroom and both spaces presumably sharing a hand basin. vii. Proximity and potential conflict between the bottom stair riser of Unit 2 and the entry area." 1. Mr Phu saw the combination of an inadequate site width, and efforts to meet private open space requirements, as resulting in a compromised design for the ground floor of each dwelling. He saw the layout as providing unacceptable internal living space, particularly the kitchen and living areas. 2. Mr Wood highlighted what he saw as positive amenity features of the proposal, in particular, he saw a good relationship between living areas and private open space, and gave importance to the northern orientation of living and outdoor areas, relating to solar access in cooler months. He also worked through each of the particulars raised in this contention, noting some improvements in regard to pantry space and the availability of furnishable walls as a consequence of the amended plans. In oral evidence he expressed the view that the proposal provided a good design response to the spatial constraints and referred to the proposal's general compliance, in regard to living areas, with the Apartment Design Guide (referenced in State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development). Mr Wood agreed under cross examination that there was "not a huge amount" of space in the "galley" kitchens, but that there was "enough", and it was "satisfactory". 3. Mr Phu had undertaken some measurements of other comparable dwellings in the site environs and found the site areas available for the kitchen and living areas as below average. He believed the narrow site width "affected everything" and saw the amenity available within the living areas as "very poor". 4. I accept the evidence of Mr Wood that the proposal would have an acceptable level of amenity for future occupants. I agree with Ms McKelvey that there was something of an over-focus in the Council's evidence that large is good and small (or non-compliance with the lot width standard at least) is not good enough. The layout (as compared to space available) is quite optimal and can be seen as providing pleasant areas to be, with the northern orientation of living areas and the connection with northern private open space noteworthy. Solar access in the winter months is part of this future amenity picture, although, in my view not everything in terms of the amenity available in these smaller sized dwellings. I note Mr Bonanno's submission, in regard to hypothetical future two-storey building works to the north blocking sun to the south. I can see that two-storey development next door would reduce the available amenity, especially for Dwelling 1. But the particulars of this are a matter for the examination of the merits of the future application. Public interest 1. The public interest contention was essentially focused on the departure from the minimum lot width control, with the suggestion that this would set an undesirable precedent. Council's written contentions refer to this precedent applying to corner lots. In his closing submissions, Mr Bonanno took this further, raising prospects for any lots of similar width (ie including 12m wide midblock parcels with single frontage) as becoming prospects for dual occupancy development should there be an approval of the proposal. 2. In Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 ('Goldin'), Lloyd J gave guidance in relation to the question of precedent, and where it may properly be taken into consideration. Justice Lloyd found, inter alia, as follows [28]: "As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration." 1. The initial test under Goldin goes to whether the proposal is objectionable of itself (or as put by Sugerman J in Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177 "not unobjectionable"). In the case before me, I have not found anything substantively objectionable about the proposal. While prima facie, the contravening lot width might be thought of as such (essentially as a consequence of the flow-on effects of this contravention), my evaluation is that the proposal is satisfactory, rather than objectionable. There are three central reasons for this. 2. The first reason is the foundational point and it is because it seems to me that the proposal entirely aligns with the (relevant) zone objectives (see [33]-[37]). Both the second and third reasons also link to the zone objectives. 3. The second reason is that the proposal does not adversely affect the amenity of others, or the local landscape or indeed visual character more generally. Central here is the fact that the development is located on a corner block. In comparison with what might be predicted from a midblock setting, the proposed dual occupancy in this corner location has a comfortable arrangement with its neighbours. The positive effect on local landscape and visual character is as a consequence of the proposed activation of the streetscape, along Ward Street (currently enjoying a boundary fence, and little in the way of landscape), and the proposed landscaping at the public domain edge along both Angus Crescent and Ward Street. 4. The third reason is that the proposal provides for satisfactory amenity for future occupants. This issue has been considered above (see [50]), but overall I agree with the submissions made by Ms McKelvey that the proposal provides for two modest family homes. There is nothing in the planning controls brought to my attention to suggest dwellings in the R2 Low Density zone need be larger than modest. The proposal would provide for the housing needs of those members of the community who can afford more modest accommodation such as this. 5. Because I do not find the proposal objectionable of itself, the second test in Goldin, concerned with "the probability that there will be further applications of a like kind", does not come into play. Indeed, in my understanding, the question of precedent should not be a consideration. 6. The Court orders that: 1. The applicant is granted leave to amend the development application by relying on the plans and BASIX certificate referenced in conditions at Annexure A. 2. The applicant is granted leave to amend the application by relying on the amended written request under clause 4.6 of Bankstown Local Environmental Plan 2015, dated 9 July 2020. 3. The applicant's written request under clause 4.6 of Bankstown Local Environmental Plan 2015 is upheld. 4. The appeal is upheld. 5. Development Application 1087/2019 seeking development consent for the demolition of existing structures and construction of a two-storey attached dual occupancy, and associated works, and Torrens title subdivision at 40 Angus Crescent, Yagoona, is approved subject to the conditions at Annexure A. 6. Exhibits are returned with the exception of Exhibits 1, A, B, C, D and E. ………………………… P Walsh Commissioner of the Court Annexure A (197766, pdf) Architectural Plans (9772455, pdf) Landscape Plan (1134205, pdf) ********** 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: 23 July 2020