Land and Environment Court New South Wales Medium Neutral Citation: Zhang v Georges River Council [2020] NSWLEC 1625 Hearing dates: Conciliation conference on 3 December 2020 Date of orders: 10 December 2020 Decision date: 10 December 2020 Jurisdiction: Class 1 Before: Gray C Decision: Proceedings 2020/240320 See orders below at [7] Proceedings 2020/240347 See orders below at [8] Catchwords: APPEALS – two development applications – change of use of outbuildings to secondary dwellings – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Regulation 2000 Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Affordable Rental Housing) 2009 Category: Principal judgment Parties: Huawen Zhang (First Applicant) Xiao Di Zhou (Second Applicant) Georges River Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicants) S Wilson (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicants) Georges River Council (Respondent) File Number(s): 2020/240320; 2020/240347 Publication restriction: Nil Judgment 1. COMMISSIONER: These two appeals concern two separate development applications, each of which seek the use of an outbuilding as a secondary dwelling. Proceedings 2020/240320 concerns a development application for the use of an outbuilding as a secondary dwelling at 25A William Road, Riverwood, and proceedings 2020/240347 concerns a development application for the use of an outbuilding as a secondary dwelling at 25 William Road, Riverwood. Both dwellings and outbuildings were constructed pursuant to a grant of development consent for a dual occupancy (DA 2014/1052). The dual occupancy has since been subdivided, resulting in a dwelling and an outbuilding on each subdivided lot. It is those two subdivided lots to which the two development applications relate. No building works are proposed in either of the applications. Both were refused by Georges River Council on 10 August 2020. Each appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on each appeal, the Court has the power to determine the development applications pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in the appeals, outlined in [7] and [8] below, are made as a result of agreements between the parties that were reached at a conciliation conference. 2. The Court arranged a conciliation conference for both appeals under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 3 December 2020. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in each of the proceedings that would be acceptable to the parties. The agreement is supported by an agreed statement on jurisdictional prerequisites, which was emailed to the Court on 2 December 2020. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to each application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties in each appeal is met, for the following reasons: * The proposed use, as a secondary dwelling, is permissible in the R2 Low Density Residential zone in which the two sites are located, pursuant to the Hurstville Local Environmental Plan 2012 ("HLEP 2012"). * The amended development applications are each accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. * Consideration has been given as to whether the subject sites are contaminated as required by cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land. As the sites have a history of use for the purposes of residential dwelling houses, they are not likely to be contaminated. * I am satisfied that development consent should be granted in each appeal, notwithstanding the breach of the maximum floor area permitted under cl 22(3)(a) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 ("SEPP ARH"). Clause 22(3)(a) is a development standard that prevents consent being granted to development for a secondary dwelling unless "the total floor area of the principal dwelling and the secondary dwelling is no more than the maximum floor area allowed for a dwelling house on the land under another environmental planning instrument." The result is that the maximum floor area established by cl 6.5 of the HLEP 2012 applies, which restricts the maximum gross floor area for the development on each site to 314.875m2. On each site, the existing dwelling and outbuilding have the same total gross floor area of 343.5m2, a floor space ratio ("FSR") of 0.6:1, which was approved pursuant to the consent for the dual occupancy and outbuildings, and is compliant with the applicable FSR development standard for dual occupancies pursuant to cl 4.4 of the HLEP 2012. On each site, the development presents a contravention of 28.625m2, which is 9% of the maximum gross floor area permitted pursuant to cl 6.5 of the HLEP 2012, with which cl 22(3)(b) of the SEPP ARH requires compliance. As the provisions of cl 22(3)(b) are a development standard, there is power pursuant to cl 4.6 of the HLEP 2012 to grant development consent notwithstanding this contravention. Consistent with the satisfaction required by cl 4.6(4), in each appeal, I am satisfied that: 1. The written request in each development application (each dated 2 December 2020), lodged pursuant to cl 4.6 of the HLEP 2012, demonstrates that compliance with the standard is unreasonable and unnecessary given that there are no building works proposed, and the floor space of the existing buildings was approved in an earlier consent for a dual occupancy that was compliant with the FSR development standard applicable to dual occupancies. 2. The written request in each application adequately establishes sufficient environmental planning grounds that justify the breach in the FSR development standard by demonstrating that the gross floor area has been approved under the earlier development consent, the secondary dwelling otherwise complies with the relevant controls and is suitable for habitable purposes, and allowing the use as a secondary dwelling adds to the variety of housing stock within the locality and contributes to affordable housing options. 3. Based on the contents of the written request, the proposal in each appeal is in the public interest because it is consistent with the objectives of the zone and of the FSR standard in the HLEP 2012. * In each appeal, the proposed development does not breach any other applicable development standard that applies pursuant to the SEPP ARH or the HLEP 2012. 1. Having reached the state of satisfaction that the decision in each appeal is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to each of the agreements between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. Proceedings 2020/240320 1. The Court orders that: 1. Leave is granted for the Applicant to rely on the amended and additional plans and materials as listed in the conditions of consent at Annexure A. 2. The Clause 4.6 variation application in relation to the total floor area of the primary and secondary dwellings which exceeds the maximum floor area allowed for secondary dwelling development standard contained in Clause 6.5 of the Hurstville Local Environmental Plan 2012 and annexed to this agreement as Annexure B is upheld. 3. The appeal is upheld. 4. Development Application No. DA2020/0213 lodged with the Respondent on 15 May 2020 and as now amended with the plans and materials listed at Condition 2 of Annexure A for the use of the existing outbuilding as a secondary dwelling on Lot 2 DP 1247911, known as 25A William Road, Riverwood, is approved subject to the conditions annexed to this agreement as Annexure A. Proceedings 2020/240347 1. The Court orders that: 1. Leave is granted for the Applicant to rely on the amended and additional plans and materials as listed in the conditions of consent attached at Annexure A. 2. The Clause 4.6 variation application in relation to the total floor area of the primary and secondary dwellings which exceeds the maximum floor area allowed for secondary dwellings contained in Clause 6.5 of the Hurstville Local Environmental Plan 2012 referred and annexed to this agreement as Annexure B is upheld. 3. The appeal is upheld. 4. Development Application No. DA2020/0206 lodged with the Respondent on 15 May 2020 and as now amended with the plans and materials listed at Condition 2 of Annexure A for the use of the existing outbuilding as a secondary dwelling on Lot 1 DP 1247911, known as 25 William Road, Riverwood, is approved subject to the conditions annexed to this agreement as Annexure A. ………………………. J Gray Commissioner of the Court Proceedings 2020/240320 Annexure A (163328, pdf) Annexure B (1826346, pdf) Proceedings 2020/240347 Annexure A (132590, pdf) Annexure B (1114923, 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: 10 December 2020