Land and Environment Court New South Wales Medium Neutral Citation: Gorgees v Fairfield City Council [2021] NSWLEC 1283 Hearing dates: 28 and 29 January 2021 Date of orders: 24 May 2021 Decision date: 24 May 2021 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. 627.1/2017 (as amended) for the demolition of an existing dwelling and ancillary structures and construction of a part 1 and part 2 storey multi dwelling housing development containing 8 dwellings (2 x 2 bedroom and 6 x 3 bedroom dwellings) over one basement level with 12 parking spaces and associated landscaping works, subject to the conditions in Annexure A. (3) The exhibits are returned except for Exhibits A, B, C and 4. Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing – affordable rental housing – inconsistency and incompatibility of SEPP and DCP controls Legislation Cited: Environmental Planning and Assessment Act 1979 ss 3.43, 3.45, 4.15, 8.7 Fairfield Local Environmental Plan 2013 cll 1.2, 4.3, 6.1, 6.2, 6.4, 6.9, 6.12 Land and Environment Court Act 1979 s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 3, 4, 10, 13, 14, 15, 16A, 17 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy No 55— Remediation of Land cl 7 Cases Cited: Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164 Falamaki v Council of the City of Ryde [2019] NSWLEC 1007 Hastings Point Progress Association Inc v Tweed Shire Council (2009) 168 LGERA 99; [2009] NSWCA 285 Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 Texts Cited: Fairfield City Wide Development Control Plan 2013 Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) Seniors Living Policy: Urban design guidelines for infill development (2004) Category: Principal judgment Parties: Khiri Gorgees (First Applicant) Wasan Gorgees (Second Applicant) Fairfield City Council (Respondent) Representation: Counsel: T To (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/326576 Publication restriction: No Judgment Introduction 1. COMMISSIONER: This is an appeal against the refusal by Fairfield City Council (Council), of the development application 627.1/2017 (the DA) for land at 123 Polding Street, Fairfield Heights (the site). The DA seeks consent for the demolition of an existing dwelling and ancillary structures and construction of a part 1 and part 2 storey multi dwelling housing development containing 8 dwellings (2 x 2 bedroom and 6 x 3 bedroom dwellings) over one basement level with 12 parking spaces, and associated landscaping works. Background 1. The DA was originally submitted to Council on 20 July 2017 and notified to adjoining and nearby residents from 23 November 2017 to 8 December 2017. One submission was received, as tendered within Council's bundle of documents, Ex 3, at folio 24-25. On 23 August 2019 the Council refused the DA for the reasons set out in its Notice of Determination of the same date, a copy of which was provided to the Court as part of Ex 3, at folios 82 - 85. 2. This Class 1 appeal was filed with the Court on behalf of the Applicant on 18 October 2019 pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act). On 15 November 2019 the Court listed the matter for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) and on 17 June 2020 the presiding Commissioner Walsh terminated the s34 conference in circumstances where the Parties could not reach an agreement. 3. On 1 December 2020 the Applicant filed with the Court a Notice of Motion seeking leave to rely on amended architectural plans prepared by Design and Building Group dated July to November 2020, amended landscape plans prepared by Zenith Landscape Design dated 13 August 2020, and various other supporting documents, including a Detailed Site Investigation report and Remediation Action Plan, an amended BASIX Certificate and documents demonstrating the creation of an easement for drainage over the property to the rear of the site. On 8 December 2020, the Court granted leave to rely on the amended plans and documents as listed in the Notice of Motion filed on 1 December 2020 (the Amended DA). 4. Between 7 – 21 December 2020 the Council notified the Amended DA, resulting in the receipt of two submissions, copies of which were included in Exhibit 3 at folios 88-91. On 11 January 2021 the Council filed its Amended Statement of Facts and Contentions (Amended SOFC) in response to the Amended DA. The Amended SOFC (Ex 1) acknowledged the Amended DA had resolved many of the contentions raised in the earlier Statement of Facts and Contentions. 5. The Parties' town planning experts then engaged in joint conferencing and the preparation of a Joint Report based on the Amended DA. On 19 January 2021 the Joint Expert Report of the town planners (the Joint Planning Report) was filed with the Court. Appended to the Joint Planning Report were two further amended architectural plans: Basement Plan drawing number DA – 03 Issue E and Site and Ground Floor Plan DA – 04 Issue E (further amended plans). 6. The hearing commenced on 28 January 2021 with a view of the site. As a result of the Court's adoption of its COVID-19 Pandemic Arrangements Policy introduced on 23 March 2020, the remainder of the hearing was conducted by video link using Microsoft Teams. The proposal 1. These proceedings relate to the Amended DA and the further amended plans. In the hearing the Applicant sought leave to rely on the two further amended plans as attached to the Joint Planning Report. This was unopposed by the Council and I granted leave to the Applicant to rely on the further amended plans. A consolidated set of all the amended architectural plans was tendered as Ex B (final consolidated plans). The main changes between the final consolidated plans (Ex B) and the original DA plans refused by Council on 23 August 2019 are: 1. The basement level has been amended to reduce the number of parking spaces from 14 to 12, to include a bin storage area and reconfigure the storage cages. 2. The ground floor plans have been reconfigured so the third bedroom in each of units U2 to U7 is relocated from the west side to the east side of the unit, away from the pedestrian access path, and the bin storage area is relocated to the basement level. 3. The first floor plans have been reconfigured to separate, at this level, Units 2 and 3, and Units 4 and 5 such that the development constitutes four clearly separated buildings above the basement. Each of the separated buildings contains two dwellings. 4. Unit 1 facing the street has been reduced in area at the upper level, with the removal of a study, and a second balcony to the street has been introduced off the master bedroom. 1. For the reasons set out in this judgment the proposed development, as amended, is acceptable for this site, subject to the imposition of conditions of consent. In reaching this decision, I have taken into consideration the written evidence of the town planning experts Mr Benjamin Black (for the Applicant) and Mr Glenn Apps (for the Council) as set out in the Joint Planning Report tendered as Exhibit 4, and their oral evidence; and the various plans and reports tendered in the proceedings. 2. I have also taken into consideration the relevant matters of the various statutory instruments and other matters for consideration under s 4.15 of the EP&A Act, including the written public submissions included in the Council bundle of documents (Ex 3), my own observations of the site and its environs taken at the site view, and the Parties' submissions in the hearing. The site and local planning context 1. The site comprises one 1,154.7m2 allotment of land at 123 Polding Street Fairfield Heights, on the southern side of Polding Street between Marlborough Street and The Boulevarde. The land is legally described as Lot 3 in DP 23774. The site has a regular rectangular shape, with a rear boundary and street boundary width of 15.24m, western side boundary of 75.69m and eastern side boundary of 75.855m. 2. The site is occupied by a single storey dwelling house, with ancillary awning and outbuilding. It is devoid of any significant vegetation and the land at the rear of the site has been levelled and filled, with low retaining walls near the boundary containing the filled area. The site is the beneficiary of registered easements to drain water over the adjoining land to the south within Strata Plan 77083, as set out in the documents tendered by the Applicant as part of Exhibit D (Tab 10). 3. The built environment in the locality, on the southern side of Polding Street and northern side of Stanbrook Street, is characterised by a predominance of two storey multi dwelling housing developments, with a smaller number of single or two storey dwelling houses and two storey semi-detached dwellings. This pattern of development is evident from the aerial photograph tendered as Exhibit 2, and in Figure 1 of the Joint Planning Report (Ex 4) which is reproduced below. 1. Adjoining on the northern-most half of the site's western boundary are two semi-detached Torrens title dwellings, with separate driveways to Polding Street. To the west and south of the semi-detached dwellings, and immediately adjoining the southern half of the site's western boundary, is an 'L' shaped multi dwelling housing development that has been strata subdivided. 2. Multi dwelling housing developments, that are also strata subdivided, adjoin the site to the south, south west and south-east and are accessed from Stanbrook Street. Adjoining to the east on Polding Street is another strata subdivided two storey multi dwelling housing development. 3. The pattern of immediately adjoining development has resulted in the site being isolated, as agreed between the planners (para 42, Ex 4) and is not readily able to be amalgamated. 4. With respect to the character of the locality the planners agree at paragraph 68 that: "The character of the local area comprises a mix of multi-dwelling housing development of varying ages and with a mix of single and 2 storey built forms. Some duplex development exists in the immediate area. Otherwise, the area comprises single dwellings which may transition to multi dwelling housing over time, as permitted by the current zoning." Satisfaction of planning instruments and other planning documents State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) aims to encourage sustainable residential development through the incorporation of sustainable design and building measures to achieve more water and energy efficient buildings. It includes an on-line program administered by the New South Wales (NSW) Department of Planning Industry and Environment that assesses a residential development against water, thermal comfort and energy reduction targets. Designs must meet or exceed these targets before a BASIX Certificate can be issued. In this case an amended BASIX Certificate (Certificate number: 866637M_02 dated 23 September 2020) was tendered as part of Exhibit D at Tab 8. The certificate demonstrates that the provisions of SEPP BASIX have been satisfied, and this is not in dispute between the Parties. Furthermore, compliance with the BASIX certificate is required under the provisions of Condition 41 of the consent. State Environmental Planning Policy No. 55 – Remediation of Land 1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), specifies at cl 7 that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated, and if so whether the land is suitable in its contaminated state or can and will be made suitable by remediation for the purpose for which the development is proposed. 2. For the purposes of cl 7 of SEPP 55 consideration has been given to whether the site on which the development is to occur is contaminated. A Detailed Site Investigation report by Benviron Group dated 2 October 2019 (DSI report) tendered as part of Exhibit D (Tab 3) was undertaken in accordance with the New South Wales Office of Environment and Heritage Contaminated Sites: Guidelines for Consultants Reporting on Contaminated Sites, 2011 to determine the suitability of the site for the proposed land use. 3. The DSI report found that: 1. On parts of the site the remediation of soils is required. 2. The ground water quality of the site has not been investigated. 3. The site can be made suitable for the proposed development subject to 1. The implementation of a Remediation Action Plan (RAP) to manage the above environmental concerns; and 2. Any soil requiring removal from the site should be classified in accordance with the "Waste Classification Guidelines, Part 1: Classifying Waste" NSW Environment Protection Agency (2014). 1. A RAP was subsequently prepared by Benviron Group, dated 1 November 2019 (Ex D, Tab 4). It sets out a range of measures to guide the site's remediation and validation, including for additional sampling of soils and groundwater. The RAP concludes that the site will be suitable for the proposed development subject to the implementation of the remediation and validation works contained within it. 2. Satisfaction of the provisions of SEPP 55 is not in contention in these proceedings. Condition 53 of the consent requires certification from a suitably qualified person of all works / methods / procedures / control measures / recommendations approved by the Council's Environmental Health Officer and set out in the DSI report and RAP prepared by Benviron Group. The relevant provisions of SEPP 55 have therefore been considered and remediation addressed. State Environmental Planning Policy (Affordable Rental Housing) 2009 1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies to the development, and in particular Division 1 which relates to in-fill affordable housing. The development's satisfaction of the following provisions of the SEPP ARH was not in contention in the hearing: 1. Clause 10(1)(a) of Part 2, Division 1 applies to development for the purpose of multi dwelling housing if the development concerned is permissible with consent under another environmental planning instrument. Multi dwelling housing is permissible with consent in Zone R3 Medium Density Residential pursuant to Fairfield Local Environmental Plan 2013 (FLEP). 2. Clause 10(1)(b) of Part 2, Division 1 – does not apply as the site does not contain a heritage item. 3. Clause 10(2) of Part 2, Division 1 - the proposed development is in an accessible area within the meaning of cl 4(1) of SEPP ARH. 4. Clause 13 of Part 2, Division 1 – the SEPP ARH includes an allowance for a floor space ratio (FSR) 'bonus' subject to a requirement at cl 13(1) that at least 20% of the gross floor area (GFA) of the development be used for affordable housing. The maximum permissible FSR is calculated in accordance with the formula specified in cl 13(2). Application of that formula to the development results in a maximum permissible FSR for the site of 0.677:1, based on the proposed dedication of more than 20% of the GFA as affordable housing. The development has a GFA of 750.7 m2, a FSR of 0.65:1 and the GFA of the affordable housing component (Units 6 and 8) is 170.5 m2 or 22.7%. 5. Clause 14 of the SEPP ARH sets out the site and solar access requirements, which if complied with, a consent authority cannot use as ground for refusal of an application. The proposed development is satisfactory having regard to each of those standards: 1. The site area is 1,154.7m2, compared to the standard of 450m2 (cl14(1)(b)). 2. The landscaped area is 30.7% of the site area, compared to the standard of at least 30% (cl14(1)(c)(ii)). 3. The deep soil zone has a minimum dimension of 3m and occupies 22.4% of the site area, compared to the standard of at least 15% (cl14(1)(d)(i) and (ii)). 4. At least 70% of the units achieve at least 3 hours direct sunlight to their private open space and living areas between 9am and 3pm in midwinter (cl14(1)(e)). 5. The development provides a total of 12 parking spaces in a development with a bedroom mix that requires at least 11 parking spaces (cl14(2)(a)(ii)). 6. The dwelling sizes of the two bedroom units range from 75.5m2 to 78.4m2, compared to the standard of at least 70m2, and the three bedroom units range from 95.0m2 to 121.8m2, compared to the standard of at least 95m2 (cl14(2)(b)(ii) and (iii)). 7. Clause 16A of Part 2, Division 1 – I accept the evidence of the planning experts who agree that the proposed development is compatible with the character of the local area, for the reasons set out in paragraphs 69 to 71 of the Joint Planning Report. 8. Clause 17 of Part 2, Division 1 – Conditions 67 and 96 of the consent requires units 6 and 8 to be used for the purposes of affordable rental housing as defined in the SEPP (ARH) for a period of 10 years in accordance with cl 17. 1. Clause 15 of Part 2, Division 1 requires consideration of the Seniors Living Policy: Urban Design Guidelines for Infill Development, (March 2004), (Seniors Living Guidelines) to the extent that those provisions are consistent with the SEPP ARH. The relevant provisions of the Seniors Living Policy are set out in Table 4 of the Statement of Environmental Effects prepared by Planning Ingenuity dated 23 October 2017 (Exhibit A, Tab 5). Satisfaction of the Seniors Living Guidelines was not in contention except with respect to the development's private open space provision. This is addressed in my consideration of Contention 3. Fairfield Local Environmental Plan 2013 1. The site is located within the Zone R3 Medium Density Residential (R3 Zone) pursuant to the provisions of the Fairfield Local Environmental Plan 2013 (FLEP). The proposed "multi dwelling housing" development is permissible with consent in the R3 Zone. 2. The Council and the town planning experts did not contend that the proposal was contrary to the aims of the FLEP (cl 1.2). Nor did they contend that it was contrary to the objectives of the R3 zone. The development, with a height of 8.5m, does not exceed the 9.0m maximum height of buildings development standard in cl 4.3 of the FLEP. The FSR is governed by the provisions of the SEPP ARH as set out in paragraph 24(4) of this judgment. 3. Clause 6.1 Acid sulfate soils. The potential for acid sulfate soils on the site has been considered as part of the DIS report (Ex D, Tab 3). It concluded (at page 23) that the site has no known risk of acid sulfate soil materials. This was not in contention in the proceedings. 4. Clause 6.2 Earthworks. Included at cl 6.2(3) of the FLEP is a list of matters arising from any earthworks associated with development that are to be considered by the consent authority in deciding whether to grant consent. In this case the associated earthworks primarily relate to the basement excavation work, and they have been considered in the DIS report (Ex D, Tab 3). This was also not in contention in the proceedings. 5. Clause 6.4 Flood planning applies to the development proposal. Amended Stormwater Management Plans by Quantum Engineers, Revision F dated 18 August 2020 (Ex D, tab12) and the procurement of easements over the adjoining property to the south have addressed the stormwater management issues raised in the original Statement of Facts and Contentions. Accordingly, stormwater management has been satisfactorily addressed and was no longer pressed by Council. 6. Clause 6.9 Essential services. The parties agreed that the provision of all relevant services was not in dispute. 7. Clause 6.12 Design excellence. This clause does not apply to development within the R3 Zone. Fairfield City Wide Development Control Plan 2013 (DCP) 1. The Fairfield City Wide Development Control Plan 2013 (the DCP) is a relevant matter for consideration under s 4.15(1)(a)(iii) of the EP&A Act. The Council provided the Court with the relevant chapters of the DCP, being Chapter 3 Environmental Management and Constraints, Chapter 6A Multi Dwelling Housing – Townhouses and Villas and Chapter 12 Car Parking, Vehicle and Access Management. 2. The relevant controls in Chapter 3 of the DCP are those relating to flooding, land contamination and acid sulfate soils, and have all been satisfactorily addressed for the reasons set out in earlier paragraphs of this judgment. 3. The relevant controls in Chapter 12 are those relating to the design of the basement carpark, including access ramps, parking space numbers and dimensions, aisle width and vehicle manoeuvrability. Carparking controls are also found in Chapter 6A at 6A.3 of the DCP. These have been resolved in the amended architectural plans and addressed in the Addendum Traffic and Parking Assessment report prepared by TTPP Transport Planning dated 19 November 2020 (Ex D, Tab 6). These issues were no longer pressed by Council, and for the reasons set out in the TTPP report of 19 November 2020 I find the development to be satisfactory in this regard. 4. The majority of the provisions of Chapter 6A of the DCP were not in contention. Those provisions of Chapter 6A of the DCP that remained in contention are addressed in response to the contentions. Contentions 1. The original Statement of Facts and Contentions filed on 19 December 2019 predated the Amended DA. The number of contentions pressed was significantly narrowed after some matters were resolved through the provision of additional information or changes to the original plans. The remaining contentions listed in the Amended SOFC were: 1. Inadequate site width - clause 6A1.1.2 of the DCP (Contention 1). 2. Excessive lot yield - clause 6A2.7 of the DCP (Contention 2). 3. Private open space areas, dimensions and usability – clause 6A4.1.1 of the DCP (Contention 3). 4. Compatibility with character of the local area - cl 16A of the SEPP ARH (Contention 4). 5. Waste collection, and in particular storage of bins - clause 6A.7.6 of the DCP (Contention 12). 6. Public interest and precedent (Contention 17). 1. After the town planning experts considered the further amended plans at their joint conference and prepared the Joint Planning Report, the contentions were further narrowed. The town planning experts agreed that the development was not incompatible with the character of the local area, and that the further amended plans resolved the bin storage issues by relocating the bin storage areas to the basement. The planners also agreed that there were no matters of contention between them with respect to Contention 3, although maintained some concerns about the usability and amenity of the private open space areas. Accordingly, Contentions 4 and 12 were resolved and not pressed in the proceedings. Contentions 1, 2, 17 and aspects of 3 became the remaining outstanding matters to be determined by the Court. Inadequate site width (Contention 1). 1. Contention 1 of the amended SOFC states: "The development application should be refused because the width of the site is inadequate to accommodate development, does not comply with the clause 6A1.1.2 in Chapter 6A of the FDCP 2013 and will result in a development which is inconsistent with the character of other similar developments in Polding Street and which does not provide high levels of residential amenity." 1. The relevant provisions of the DCP found at clause 6A.1.1.2 are reproduced below: "6A.1.1 Lot Requirements In order to achieve appropriate amenity, it is pertinent to identify lots with appropriate lot width. The lot width, lot depth and battleaxe block controls ensure that land is appropriate for townhouse/villa development. 6A.1.1.2 Lot Width and Depth Objectives a) Ensure site is an appropriate size to accommodate a high level of amenity for residents of the site including surrounding sites. b) Promote orderly patterns of development that encourage efficient use of land. c) Ensure that an orderly development of the immediate and surrounding locality is achieved. d) Improve pedestrian and vehicle safety by ensuring amalgamation pattern minimises access points onto classified and regional roads. Controls a) A minimum average lot width and depth of 22 metres is required for all townhouse/villa developments. b) Lots that front onto Classified State and Regional Roads and Unclassified Regional Roads, a minimum of 25 metre street frontage is required. For a list of Classified State and Regional Roads and Unclassified Regional Roads, refer to Schedule 1 and 2 at the end of this Chapter. c) The average lot width for measuring frontage for sites located on a cul-de-sac head is to be measured six metres from the front boundary." 1. There was no dispute that the site is located on an Unclassified Regional Road, as identified in Schedule 2 of the DCP. It is also an agreed fact that the lot width is 15.24m and the lot depth is between 75 – 76m. 2. Mr To for the Applicant argued that the minimum lot width and depth provisions at clause 6A.1.1.2 of the DCP effectively control minimum site area, and are therefore inconsistent or incompatible with cl 14(1)(b) of the SEPP ARH. Accordingly clause 6A.1.1.2 of the DCP is "inoperative" in this circumstance by virtue of s 3.43(5) of the EP&A Act, which provides: S3.43(5) A provision of a development control plan (whenever made) has no effect to the extent that – (a) It is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or (b) It is inconsistent or incompatible with a provision of any such instrument. 1. In submissions Mr To maintained that the DCP control at clause 6A.1.1.2 needs to be read as a whole, it is "not just directed to width, or to depth, but to both and therefore controls minimum site area." Mr To suggests in submissions that "it would be inappropriate to 'cherry pick' one aspect of the control .., such as lot width, but to ignore the other element, lot depth – this is to ignore the conjunctive way the control is deliberately expressed." He also pointed to Objective a) of the control which refers to ensuring the "site is an appropriate size to accommodate a high level of amenity for residents .." (emphasis added). 2. Mr To then proceeded to calculate the minimum site area, by multiplying the minimum lot depth of 22m and the minimum lot width of 25m for lots fronting an Unclassified Regional Road, resulting in a minimum permissible lot area of 550m2. Mr To argued that the provisions of clause 6A.1.1.2 of the DCP cannot operate concurrently with the non-refusal minimum site area standard of 450m2 at cl 14(1) in the SEPP ARH. 3. Mr To argued that the control in clause 6A.1.1.2 of the DCP was inconsistent with the minimum site area control at cl 14(1) of the SEPP ARH, and even if not inconsistent it was incompatible. Accordingly, Mr To maintained, s 3.43(5) of the EP&A Act applies, the DCP control has no effect and cannot form part of the consideration of this matter. 4. Mr Seton on the other hand draws a distinction between "lot size" and "site area" noting the definition of "site area" in cl 4 the SEPP ARH includes land on which the development is to be carried out may include the whole or part of one lot, or more than one lot if they are contiguous. In his submission lot depth and lot width taken together do not equate to "site area". In any event, I note that in this case the "site area" and the "lot size" are the same, as the site constitutes the whole of one allotment of land, and nothing turns on the different terminology. 5. Mr Seton also submitted there was no inconsistency or incompatibility because the site area and lot width and depth deal with different matters. Furthermore he contended that if the SEPP ARH had wanted a 'cannot be refused' standard for lot width and lot depth it would have done so, as for example was included in the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP) which at cl 25(2)(c) provides: (c) site area and site dimensions—the development may be located on a site of any size and have any length of street frontage or any allotment depth, 1. In support of this argument Mr Seton took the court to the cases of Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 (Louden) and Falamaki v Council of the City of Ryde [2019] NSWLEC 1007 (Falamaki). 2. In Louden Gray C addressed whether there was an inconsistency between the minimum site area at cl 14 of the SEPP ARH and development standards within another environmental planning instrument, the Bankstown Local Environmental Plan 2015 (BLEP 2015). Clause 4.1B(2)(a) of the BLEP 2015 provided for a minimum "area of the lot" and a minimum "width of the lot" at the front building line, both of which needed to be satisfied before development consent could be granted. In Louden the parties agreed that there was an inconsistency between the development standard "for the area of the lot" in BLEP 2015 and the minimum "site area" in the SEPP ARH, and as such the provisions of the SEPP ARH prevail." (Louden, para [19]). 3. The parties disagreed, however, about whether there was an inconsistency between the minimum site area control in the SEPP ARH and the minimum lot width control in the LEP. In Louden counsel for the applicant argued the two were incongruous, that this creates an inconsistency that causes the SEPP ARH to prevail and cl 4.1B(2)(b) of BLEP 2015 (relating to lot width) to have no effect. Nevertheless, as a precaution, the applicant in that case had submitted a request to vary the 'lot width' development standard in the event it was found to apply. 4. In Louden, Gray C (at paragraphs [34] and [35]) found that the development standard for lot width in BLEP 2015 was not inconsistent with the minimum lot size control in cl 14(1) of the SEPP ARH, and that an objection pursuant to cl 4.6 of BLEP 2015 was able to be considered. The Commissioner concluded: "[34] I accept that with a lot size of close to 450m2, achieving a frontage of 30m for a residential flat building is unlikely and/or onerous. To expect to achieve such a frontage might be unreasonable in light of the "do not refuse" provision preventing refusal of the development based on lot size if the lot size is 450m2. However, I do not accept that because a standard that is unlikely to be achieved, or onerous to achieve, if cl 14(1)(b) is met, it falls within the ordinary meaning of creating an "inconsistency". In that sense, the present provisions can be distinguished from those in Castle Constructions v North Sydney Council in which their Honours were concerned with the inconsistency of two different provisions concerning the applicable height control. Whilst inherent incongruity in two different applicable provisions relating to the same control (e.g. height) may create an inconsistency, in my view incongruity due to a difficulty in achieving two different standards does not. [35] Further, whilst they are proportionally related, a standard with respect to the minimum width at the front building line is different to a standard with respect to lot size. In this respect, I accept the submission of the Council that cl 14(1)(b) of the SEPP ARH and cl 4.1B(2)(b) are capable of being reconciled, albeit it may be difficult to do so in the context of a residential flat building. For those reasons, and because cl 4.6 of the BLEP 2015 applies to allow consent to be granted notwithstanding a breach of cl 4.1B(2)(b), I do not accept that an inconsistency arises that causes cl 14(1)(b) of the SEPP ARH to prevail over cl 4.1B(2)(b). Had cl 4.6 not applied to cl 4.1B(2)(b), I may have reached a different view. Therefore, the development standard for the minimum width at the front building line of 30 metres applies to the application, but cl 4.6 allows consent to be granted notwithstanding non-compliance with this standard." 1. Falamaki also involved resolution of whether or not there was an inconsistency between cl 14(1) of the SEPP ARH and a local environmental planning instrument (EPI). In Falamaki the relevant EPI was the Ryde Local Environmental Plan 2014 (RLEP) which provided for a minimum "area of the lot" at cl 4.1B(2)(a) and a minimum "road frontage of the lot" at cl 4.1B(2)(b); again both of which needed to be complied with before development consent could be granted. Falamaki also included an objection under cl 4.6 to vary the 'lot width' development standard. 2. Adam AC ultimately concluded, at paragraph 92 of Falamaki: "… that cl 14(1) of SEPP (ARH) does not implicitly include lot width amongst the standards on which a consent authority can refuse consent and that the interpretation of Commissioner Gray in Louden is correct. Clause 4.1B of the RLEP is not inconsistent with cl 14.1 of SEPP (ARH) and thus the lot width requirement in cl 4.1B is a mandatory development standard applicable to the proposal." 1. Mr To submitted that Louden and Falamaki were of no assistance to the Council as both cases were distinguishable from the current case. Mr To pointed out that in Louden Commissioner Gray rejected the proposition that the 30m minimum lot width in the BLEP 2015 was inconsistent with or incongruous with the 450m2 minimum site area non-refusal standard in the SEPP ARH, on the basis that incongruity due to difficulty in achieving two different standards does not create an inconsistency (emphasis added). 2. With respect to the present case, Mr To submitted: "… there is not just a difficulty – but an impossibility – of achieving both the FDCP requirement and the SEPP standard. It is obvious that a site that meets the 450 sqm non-refusal standard under the SEPP is incapable of complying with the minimum site area 550 sqm required by clause 6A4.1.2 in the case of (a site fronting) an unclassified regional road, and even the minimum site area (of) 484 sqm in the case of any other road". Similarly Mr To argued that Falamaki was distinguishable from the current case in that Adam AC, whilst adopting the approach taken in Louden, was also not considering a situation where the two controls were incapable of concurrent operation. 1. In both Louden and Falamaki the Commissioners' respective considerations were in the context of lot width controls which could operate concurrently with the SEPP standard, and therefore there was no inconsistency between the provisions of the planning instruments. 2. In the present case the matter to be determined is whether there is an inconsistency or incompatibility between a provision of a development control plan and a provision of an environmental planning instrument, and therefore whether the particular provisions of the DCP have no effect, in accordance with s 3.43(5) of the EPA Act. This necessarily involves an examination of what constitutes inconsistency or incompatibility. 3. The Court was taken to Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164 (Castle Constructions) and Hastings Point Progress Association Inc v Tweed Shire Council (2009) 168 LGERA 99; [2009] NSWCA 285 (Hastings Point) to provide guidance on the interpretation and application of the term inconsistency, albeit as they may exist between planning controls within the same instrument in the case of Castle Constructions, or between different EPI's in the case of Hastings Point. 4. In Castle Constructions the New South Wales (NSW) Court of Appeal was asked to consider whether there was an inconsistency between two provisions within the same EPI, the North Sydney LEP 2001. At paragraph [41] Tobias JA states: "[41] It was ultimately common ground that the term "inconsistency" in cl 28A was to be construed in the manner adopted by Kirby P in Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324 at 331 where he observed that the term "inconsistency" in s 36 of the EPA Act was to be construed having regard to the ordinary meaning of that word. His Honour therefore rejected an argument that the term ought to be approached in a manner similar to that adopted when considering the operation of s 109 of the Australian Constitution. He considered that s 36 concerned, to the extent of any inconsistency, which of at least two laws enacted by or made under the same legislature was to prevail. The resolution of that dispute required only that the word "inconsistency" be give its ordinary natural meaning without the gloss which had necessarily developed around the meaning of the word in a constitutional setting. The President continued in those terms: "Upon that basis, there will be an inconsistency if, in the provisions of one environmental planning instrument, there is 'want of consistency or congruity'; 'lack of accordance or harmony' or 'incompatibility, contrariety, or opposition' with another environmental planning instrument."" 1. In Hastings Point Mc Coll JA at [5] confirmed this interpretive approach. His honour stated at para [5]: "It is unnecessary, in my view, to engage in a semantic analysis of the meaning of the word "inconsistency". In the present case it carries its plain meaning - whether cl 8 of the TLEP 2000 and cl 17 of the SEPP - SL could operate concurrently." 1. At paragraph [55] of Castle Constructions His Honour considered whether there was an "inconsistency in substance as distinct from mere form" and looked to the objectives of the controls in question to assist in that regard. 2. Taking the same approach in the present case I have considered the substance of the controls and sought guidance in their objectives where available. There are no explicit objectives for any of the standards at cl 14 of the SEPP ARH, and I have therefore considered the aims of the instrument. The aims of the SEPP ARH are articulated at cl 3, of which aims a) and b) relevantly provide: 3 Aims of Policy The aims of this Policy are as follows— a) to provide a consistent planning regime for the provision of affordable rental housing, (b) 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, 1. The objectives of the DCP's Lot width and depth controls at 6A.1.1.2 are: "a) Ensure site (sic) is an appropriate size to accommodate a high level of amenity for residents of the site including surrounding sites. b) Promote orderly patterns of development that encourage efficient use of land. c) Ensure that an orderly development of the immediate and surrounding locality is achieved. d) Improve pedestrian and vehicle safety by ensuring amalgamation pattern minimises access points onto classified and regional roads." 1. Objective a) relates to the size of the site, in order to achieve an amenity outcome for residents. The substance of the width and depth control considered as an inseverable single control amounts to an area control. I do not accept the proposition that they are two distinct and separate controls that can operate independently as, for example, the lot area and lot width controls in Louden and Falamaki. I accept the alternative proposition of the Applicant that the lot width and depth controls are not severable, and that applied together they constitute a lot size control which is in substance not dissimilar to a site area control. 2. Both the town planning experts agree that the practical effect of the minimum lot width and depth dimensions in the DCP, applied together, establishes a minimum lot size or area that is larger than the "site area" standard in SEPP ARH. It therefore follows that the DCP's larger site size is inconsistent with the standard in the SEPP ARH, that s 3.45 of the EP&A Act applies and the provisions of clause 6A.1.1.2 have no effect. 3. Even if that interpretation is incorrect, and clause 6A.1.1.2 of the DCP does apply: 1. the 'site size' at 1,154.7m2 is well in excess of the non-refusal development standard of 450m2 in the SEPP ARH; and 2. pursuant to s.4.15(3A) of the EP&A Act, that the provisions of a DCP are to be applied flexibly. 1. In applying DCP controls flexibly the objectives of the controls are an important consideration. Mr Apps at paragraph 19 of the Joint Planning Report accepts that the development satisfies objectives b) to d) of the control, but in his opinion is not satisfactory with respect to objective a) as "the site width is insufficient to accommodate a development with a high level of amenity for future residents of the site" (emphasis added). 2. Notwithstanding that objective a) refers to site size and not width, whether the proposed development constitutes a multi dwelling housing development of sufficient amenity to warrant approval is a key merit consideration. The amenity related considerations are addressed below in response to Contention 3. Excessive lot yield (Contention 2). 1. The Council contended the DA should be refused because the development lot yield is excessive and does not comply with the requirements of clause 6A.2.7 in Chapter 6A of the DCP. 2. The lot yield controls in cl 6A.2.7 of the DCP set out a formula for sites with basement parking, with a varying minimum site area required for each 1, 2 and 3 bedroom unit. In the Joint Planning Report Mr Apps calculated the site could yield a maximum of 6 units of either 5x3 bedroom dwellings and 1x2 bedroom dwellings, or alternatively 4x3 bedroom dwellings and 2x2 bedroom dwellings. 3. Mr Apps proffers in the Joint Planning Report that 1. The dwelling yield is "one key component of establishing the character of developments in the zone" (para 47). 2. The control works "to ensure a sense of space and setbacks that are typical of a suburban setting such as Fairfield Heights" (para 48). 3. "Where a site is constrained by width, the yield must also be constrained to meet the challenge of the site width and ensure a high level of amenity." (para 49). 4. The dwelling yield control does not act as a density control, because the (maximum) FSR can still be achieved with a reduced number of (larger) dwellings (para 50). 1. Mr To argued the controls in this clause of the DCP, like the lot width and depth controls in clause 6A1.1.2, have no effect pursuant to s 3.45 of the EPA Act because they too are inconsistent with the non-refusal development standard for "site area" in the SEPP ARH. Mr To pointed out that by definition a multi-dwelling housing development contains 3 or more units. Applying the number of units per site area in the table to control a) in clause 6A.2.7, a development containing at least 3 units must have a minimum site area of 3 x 160m2 or 480m2 if each of the three dwellings has only 1 bedroom and a greater area if the dwellings have more than 1 bedroom. 2. Based on the approach in Castle Constructions referred to above I have considered the substance of the controls and sought guidance in their objectives. The objectives of the DCP's lot yield controls at 6A.2.7 are: "a) Provide a guide as to the potential yield of a development site. b) Encourage amalgamation of lots. c) Provide adequate space for dwellings and their amenities." 1. The second objective to encourage amalgamation of lots is not applicable as I accept the agreed evidence of the planners that amalgamation is unlikely for this site. The third objective to "provide adequate space for dwellings and their amenities" goes to the merit considerations which are addressed in response to Contention 3. 2. The substance of the first objective is to establish a maximum number of units that may be accommodated on a site (the potential yield), rather than to establish a minimum site area on which development can occur. A degree of flexibility in applying the controls is found in the specific acknowledgment that the yield is a guide only. 3. Mr Seton argued the lot yield control was not a site area control. I tend to agree, and in applying the 'substance of the control' approach found in Castle Constructions based on the objectives of the DCP controls, I support that conclusion. If I am wrong however, and the lot yield controls are in substance a site area control, and are inconsistent or incompatible with the 'can not refuse' development standard in the SEPP ARH and therefore have no effect pursuant to s 3.45 of the EPA Act, I have still considered the merit issues associated with whether the number of units, accommodated as proposed in this particular design, is acceptable on its merits. 4. A greater difficulty between the DCP's lot yield controls and the SEPP ARH arises in the aim of the SEPP ARH "to facilitate the effective delivery of new affordable rental housing by providing incentives by way of … floor space ratio bonuses" (cl 3(b) SEPP ARH). 5. Mr Black argues that reducing the yield from 8 to 6 dwellings would result in an average dwelling size of 125m2 which is much larger than the minimum areas in the SEPP ARH of 70m2 for 2 bedroom dwellings and 95m2 for 3 bedroom dwellings. In oral evidence Mr Black advised a 6 dwelling development would also result in the number of affordable dwellings reducing from two to one. 6. Mr Black considers the DCP control to be a quasi density control which, if applied, could undermine the delivery of affordable housing. In his opinion the FSR bonus in the SEPP ARH is critical to the commercial attractiveness of affordable housing developments. 7. Mr Apps on the other hand maintains that the dwelling yield control does not act as a density control and that the FSR can still be achieved with a reduced number of dwellings, albeit with a larger GFA. 8. I accept that FSR controls, when applied to residential development, and dwellings per area controls both seek to control density albeit in different ways. The former sets the maximum amount of floor space that may be permitted, irrespective of the number of dwellings, and the latter sets the maximum number of dwellings, irrespective of the floor space. The two are not, however, mutually exclusive and therefore are not inconsistent. I accept Mr Apps' position that, prima facie, it is possible to satisfy both controls. 9. I also accept Mr Black's evidence that there is a tension between the DCP's lot yield controls and the SEPP ARH's FSR controls in that the DCP does not provide any incentives for affordable housing and, if applied, would be contrary to the SEPP ARH's second aim at cl 3(b) by reducing the number of dwellings provided. I therefore find that the FSR density control and bonus, as a specific incentives in the SEPP ARH to deliver affordable housing, prevail over the DCP's dwelling yield controls. Private open space areas, dimensions and usability (Contention 3) 1. Contention 3 of the Amended SOFC states: "The development application should be refused because the proposed areas of private open space are not functional and usable and do not comply with the area and dimension requirements in clause 6A.4.1.1 in Chapter 6A of the FDCP 2013." 1. The relevant provisions of clause 6A.4.1.1 of the DCP are: "6A.4.1.1 Private Open Space Objectives a) Ensure the private open space is usable, functional and easily accessible for residents. b) Ensure private open space includes landscaping and soft areas. c) Ensure direct access and a relationship between indoor and outdoor living areas. Controls a) The minimum private open space area for dwellings with direct ground floor access is as follows: Number of bedrooms Private Open Space Requirement 1 bedroom unit 20m2 – 1 portion to be a minimum of 4m x 4m of level ground 2 bedroom unit 50m2 – 1 portion to be a minimum of 5m x 5m of level ground 3 bedroom unit 60m2 – 1 portion to be a minimum of 5m x 6m of level ground … c) In the calculation of private open space: a. no area is less than 2.5 metres in width b. outdoor clothes drying areas are included as private open space c. car parking spaces are not included in open space calculations d) The private open space must have direct and level access to the dwelling's living areas, such as a lounge room, a family room, a dining room or a kitchen. The principal part of the private open space must be directly connected to the living areas of the dwelling." 1. The development standards "that cannot be used to refuse consent" at cl 14(1) in the SEPP ARH relevant to private open space are: 1. at least 30% of the site area is to be landscaped area (cl 14(1)(c)), and 2. private open space areas for a minimum of 70% of the dwellings receive at least 3 hours direct sunlight between 9am and 3pm in midwinter (cl 14(1)(e)). 1. In the Joint Planning Report the experts agree cl 15(1) of the SEPP ARH applies. It states: 15 Design Requirements (1) A consent authority must not consent to development to which this Division applies unless it has taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning, Natural Resources in March 2004, to the extent that those provisions are consistent with this Policy. 1. The planners also agree that in this instance the Seniors Living Policy: Urban Design Guidelines for Infill Development (Seniors Living Guidelines) applies, and that it relevantly provides "Development cannot be refused if .. private open space is not less 15 square metres and minimum dimension of 3 metres for ground floor dwellings". The parties agree however that these particular numerical standards in the Senior Living Guidelines are not 'do not refuse standards' but rather are a matter for consideration by virtue of cl 15(1) of the SEPP ARH. 2. The Seniors Living Guidelines also provide, at page 13 (Folio 274 of Ex 3), "design principles" for residential amenity, including provision of private open space that "is generous in proportion and adjacent to the adjacent to the main living areas of the dwelling". 3. The development provides: 1. 30.7% of the site area as landscaped area (refer drawing DA-A03 in Ex B), 2. private open space per dwelling that is at least 35m2 in area, and has a minimum dimension of 3 metres, 3. a generous amount of private open space as a proportion of the adjacent living areas (at approximately 60% of the total ground floor area of the dwelling or over 100% of the ground floor living/dining/kitchen areas), 4. is predominantly landscaped with lawns and shrubs, and a tree to a height of 4 metres within the deep soil area (refer Landscape Plans, Ex C), 5. to each private open space area a clothes line and, with the exception of Unit 8, an additional paved barbeque area, 6. direct access to the private open space from a living/dining room, and 7. private open space that receives 3 hours of sunlight in midwinter between 9:00am to 3:00pm. 1. With respect to the private open space, the experts in the Joint Planning Report state that there are no matters of contention between them. In oral evidence the planners concurred that the private open spaces are functional and have a level of amenity that is acceptable for a multi dwelling development contemplated by the SEPP ARH. 2. I agree with this assessment and find the private open space areas acceptable in size (area, dimensions and as a proportion of the living areas), their location adjacent to living areas, orientation and solar access, design and usability. Public interest and precedent (Contention 17). 1. Contention 17 is that the development should be refused because approval is not in the public interest "having regard to the contentions raised", it would "set an undesirable precedent" and having regard to concerns raised in the public submissions. 2. In the Joint Planning Report the planners agree that " … the public interest is a product of compliance with the suite of objectives and controls pertaining to the development and defer to their previous comments in dealing with each individual contention."(para 81). There are no matters of disagreement between the planners with respect to this contention. 3. The matters raised in public submissions have been either addressed in this judgment or in the various supporting documents tendered in evidence, such as the Traffic and Parking Assessment Reports (Ex A, tab 9 and Ex D, tab 6). 4. For the reasons set out in this judgment the development is satisfactory in terms of its compliance with the planning objectives and controls in the various EPI's. Where the development is inconsistent with some of the DCP's numeric controls it is nonetheless acceptable in terms of satisfying the objectives of those controls and to satisfy the aim of the SEPP ARH to deliver new affordable rental housing. 5. Based on the evidence of the planners and the aerial photograph of the locality, this sector of Polding Street is largely developed for multi dwelling housing. Furthermore as the development is acceptable, approval would not set an undesirable precedent, even in the unlikely event there was another site in the locality with similar characteristics. 6. The development is therefore not contrary to the public interest. Conclusions 1. Subject to the conditions of consent in Annexure A of this judgment I am satisfied, having taken into consideration the matters referred to in s 4.15(1) of the EPA Act and for the reasons set out in this judgment, that the development as amended is acceptable. 2. It is not inconsistent with the aims of the FLEP, satisfies the relevant R3 Zone objectives, is a use permissible with consent in the R3 Zone and complies with relevant development standards and other provisions of that instrument. It is also acceptable in terms of satisfying the relevant provisions of the other EPIs, and in particular satisfying the aims of the SEPP ARH, its Division 1 in-fill affordable housing provisions, and associated Seniors Living Guidelines. 3. Finally in terms of its merits there are no significant adverse environmental or amenity impacts on the locality that would warrant refusal of the development, subject to the conditions of consent at Annexure A. Orders 1. Accordingly, the Court orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. 627.1/2017 (as amended) for the demolition of an existing dwelling and ancillary structures and construction of a part 1 and part 2 storey multi dwelling housing development containing 8 dwellings (2 x 2 bedroom and 6 x 3 bedroom dwellings) over one basement level with 12 parking spaces and associated landscaping works, subject to the conditions in Annexure A. 3. The exhibits are returned except for Exhibits A, B, C and 4. ……………………………….. J Bindon Acting Commissioner of the Court Annexure A (274285, pdf) Plan (711339, 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: 24 May 2021