Land and Environment Court New South Wales Medium Neutral Citation: Rahman v Campbelltown City Council [2024] NSWLEC 1453 Hearing dates: 12 and 13 June 2024 Date of orders: 31 July 2024 Decision date: 31 July 2024 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders that: (1) The appeal is upheld. (2) The Respondent delete Conditions 29 and 41A of Exhibit 2 (Draft Conditions of Consent) and file these Conditions of Consent as Annexure A within 7 days of these orders. Catchwords: DEVELOPMENT CONSENT – conditions – developer contribution or levy – driveway construction Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.12, 4.15, 4.17, 7.11, 7.12, 7.13, Pt 7 Land and Environment Court Act 1979, s 17 Campbelltown Local Environmental Plan 2015, Pt 2, cll 2.1, 2.2, 2.3, 4.3, 4.4, 7.10 Environmental Planning and Assessment Regulation 2021, s 23 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, s 7, Ch 3, Pt 3, ss 67, 68, Sch 10 State Environmental Planning Policy (Resilience and Hazards) 2021 Standard Instrument (Local Environmental Plans) Amendment (Miscellaneous) Order 2021 Cases Cited: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 Anglican Church Property Trust Diocese of Sydney v Camden Council [2021] NSWLEC 118 Calleja v Botany Bay City Council (2005) 142 LGERA 104; [2005] NSWCA 337 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Fitch v Shoalhaven City Council (1987) 67 LGRA 165 Intrapac Skennars Head Pty Ltd v Ballina Shire Council (2021) 249 LGERA 400; [2021] NSWLEC 83 Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159; [2003] NSWCA 266 SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Texts Cited: Campbelltown Community Participation Plan 2023 Campbelltown Local infrastructure Contributions Plan 2018 Campbelltown Local Infrastructure Contributions Plan 2018 (Amendment 1) Campbelltown (Sustainable City) Development Control Plan 2015 Category: Principal judgment Parties: Mohammed Rahman (Applicant) Campbelltown City Council (Respondent) Representation: Counsel: P Jayne (Solicitor) (Applicant) H Irish (Respondent) Solicitors: SWS Lawyers Pty Ltd (Applicant) Marsdens Law Group (Respondent) File Number(s): 2023/274646 Publication restriction: No Judgment 1. COMMISSIONER: On 12 July 2023, the Applicant lodged Development Application No. 2366/2023/DA-CL (DA) with Campbelltown City Council (Council) seeking consent for the demolition of existing structures and construction of a co-living housing development comprising two two-storey buildings containing a total of 15 private rooms (12 single rooms and 3 double rooms) accommodating a total of 18 residents, associated landscaping and at-grade parking for 3 cars, 3 motorcycles and 4 bicycles for the property known as 1 Durham Street, Minto, being the whole of the land in Lot 17 Deposited Plan 597326 (Site): 1. Proposed Building 1 is located at the front of the site and proposed Building 2 is located at the rear, with a central car park located between the two buildings and an area of communal open space located at the rear of each building. 2. Building 1 contains 7 private rooms and Building 2 contains 8 private rooms. Both buildings have an adaptable room. Each building has a communal laundry and a communal indoor living area. 3. Building 1 contains a communal bin storage area and a bulky waste storage room intended to be used by occupants of both buildings. 4. Each proposed private room contains a kitchenette and a bathroom. 1. On 29 August 2023, the Applicant commenced proceedings pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council's deemed refusal of the DA, in accordance with the time provisions in s 8.11 of the EPA Act. 2. The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). 3. The Site: 1. Is rectangular in shape with a total site area of 836m2, having a frontage of 15.24m to Durham Street and a depth of 54.86m. 2. Has a moderate slope from the rear towards the front, and a slight cross fall from east to west, and its levels vary from approximately RL36.87 to RL39.46. 3. It currently contains a single-storey brick dwelling with tiled roof and detached double garage at the rear with scattered vegetation. 1. The Site in the locality: 1. The Site adjoins single-storey residential buildings to the east, west and south. 2. The locality is characterised by a mixture of single detached dwellings and multi-dwelling housing, with a gradual transition occurring from lower density development to medium density development. 3. Dominant characteristics of the existing built form include landscaped areas forward of the building line and habitable room windows facing the street. Vehicle parking areas are typically setback behind the primary building line and are not visually prominent. 4. The Site is located within proximity to Minto railway station and Victoria Park. Council's Further Amended Statement of Facts and Contentions filed 18 May 2024, Ex 1: pp 1, 2 and 3. 1. The Site is within Zone R3 Medium Density Residential pursuant to the Zoning Map in Campbelltown Local Environmental Plan 2015 (CLEP 2015). Figure 1: Aerial photograph of the Site with the Site shaded in red: Ex 1, p 2, par [10]. 1. Development for the purpose of "co-living housing" is prohibited in Zone R3, but permissible with consent under the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) as shop top housing is permissible with consent in Zone R3. 2. A maximum building height of 9m applies to the Site pursuant to CLEP 2015 cl 4.3 and the Height of Buildings Map. 3. Clause 7.13 (Design excellence) of CLEP 2015 applies to the DA. Council's Design Excellence Panel considered the DA on 21 and 25 September 2023 and were satisfied (Ex 3, Tab 8, pp 42-46). 4. Council commenced public exhibition and notification of the DA to adjoining and surrounding property owners in accordance with the Campbelltown City Council's Community Participation Plan on 29 September 2023. The exhibition/notification period was 28 days and concluded on 30 October 2023. One submission was received which requested conditions of consent be imposed to maintain privacy relating to window sill heights and pot sizes for plantings. 5. The Court granted several motions to rely upon amended plans, the final motion being granted on 16 May 2024. These are the plans relied upon by the Applicant for the purposes of the DA hearing. 6. At the commencement of the hearing, Council advised that all substantive issues and jurisdictional pre-requisites in Part B1 of Council's Further Amended SOFAC, Ex 1, pp 6-8 being vehicular manoeuvring and car parking, stormwater management, precedent, and public interest, had been addressed by previous amendments to the DA. 7. The two remaining matters for the Court's determination are: 1. Whether the Draft Condition of Consent as foreshadowed in Ex 1, Further Amended SOFAC, Part B2, Contention 1 (now 29(c) of the Draft Conditions of Consent – Ex 2) may be imposed; and 2. Whether Condition 41 or 41A of Ex 2 should be imposed having regard to ss 7.11(1) and (2) and 7.13 of the EPA Act, and Campbelltown Local Infrastructure Contributions Plan 2018 (CLIC Plan 2018). 1. Council drew the Court's attention to the following Documents in Ex 3, Council's Bundle of Documents: 1. Owner's consent: Tab 1, pp 5-9. 2. Tab 4, p 34: Email from Council on 17 August 2023 advising development contributions totalling "$121,914.34 subject to indexation and month: CPI 134 June 2023". 3. Tab 8, pp 42-45, Campbelltown Design Excellence Panel determined that the design is "Acceptable with changes described". 4. Tab 9, pp 46-52: Council's notification plan. 5. Tab 10, p 53: Objector's submission dated 29 October 2023 regarding sill heights on windows facing his property, and pot sizes. 6. Tab 11, pp 54-62: Housing SEPP: 1. Page 55: "7 Land to which Policy applies. This Policy applies to the State." 2. Page 58: Part 3 Co-living housing "67 Co-living housing may be carried out on certain land with consent Development for the purposes of co-living housing may be carried out with consent on land in a zone in which development for the purposes of co-living housing, residential flat buildings or shop top housing is permitted under another environmental planning instrument. Example- Co-living housing may be used as off-campus student accommodation." 1. Page 58: "68 Non-discretionary development standards – the Act, s 4.15 ... (2) The following are non-discretionary development standards in relation to development for the purposes of co-living housing – … (f) for development on land in Zone R2 Low Density Residential or Zone Re Medium Density Residential – the minimum landscaping requirements for multi-dwelling housing under a relevant planning instrument." 1. Pages 60-62: Definitions including, inter alia, "Western Parkland City means the land described as the Western Parkland City in the Six Cities Region". 1. Tab 1, pp 70-159: CLEP 2015: 1. Page 76: "Part 2 Permitted or prohibited development 2.1 Land use zones ... 2.2 Zoning of land to which Plan applies For the purposes of this Plan, land is within the zones shown on the Land Zoning Map. 2.3 Zone objectives and Land Use Table (1) The Land Use Table at the end of this Part specifies for each zone (a) the objectives for development, and (b) development that may be carried out without development consent, and (c) development that may be carried out only with development consent, and (d) development that is prohibited. (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone." 1. Page 80: "Zone R3 Medium Density Residential 1 Objectives of zone ∙ To provide for the housing needs of the community within a medium density residential environment. ∙ To provide a variety of housing types within a medium density residential environment. ∙ To enable other land uses that provide facilities or services to meet the day to day needs of residents. ∙ To provide for a wide range of housing choices in close proximity to commercial centres, transport hubs and routes ∙ To enable development for purposes other than residential only if that development is compatible with the character and scale of the living area. ∙ To minimise overshadowing and ensure a desired level of solar access to all properties. 2 Permitted without consent Nil 3 Permitted with consent ...Shop top housing..." 1. Page 112: cl 7.10 (Essential services), which includes "(d) stormwater drainage or on-site conservation". This is further referenced in Contention 2, Part B1 in Ex 1. This contention has been resolved to the satisfaction of Council, and was resolved by amended plans to which the Applicant has been granted leave to rely upon. The other essential services relevant to the DA as set out in cl 7.10 of CLEP 2015 have been supplied for the DA. 2. Page 153: extract of Council's Zoning Map outlining the Site in blue. 3. Pages 154-155: Floor Space Ratio Map, and extracts demonstrating that there is no applicable FSR to the Site. 4. Pages 156-157: Height of Building Map and extract. The DA is compliant. 5. Pages 158-159: Lot Size Map and extract which shows that the Site and DA fall within the lot size standard. 1. Tab 14, pp 160-245: Campbelltown (Sustainable City) Development Control Plan 2015 (CDCP 2015): 1. Pages 223-224: clause 3.7.2.9 Landscaping and deep soil planting: Requirements for Multi-Dwelling House – zone R3: "a) Multi dwelling housing shall satisfy the following requirements relating to landscape: i) a detailed landscape design plan shall be submitted by a suitably qualified person with the development application; and ii) a minimum of 20% of the total site area shall be available for deep soil planting; and iii) no more than 30% of the area forward of any building line shall be surfaced with impervious materials." 1. Tab 16, pp 353-359 Campbelltown Local Infrastructure Contributions Plan 2018 (CLIC Plan 2018): 1. Page 355-356: "1. Introduction The Campbelltown LGA is situated on the south western edge of Sydney and extends from Glenfield in the north to Menangle and Gilead in the south. At the time this plan was prepared Campbelltown LGA had a population of approximately 160,000 people (excluding new release and rural residential areas). … Sections 7.11 and 7.12 of the … EPA Act authorises councils and other consent authorities to require contributions of land or money from development toward the provision, extension or augmentation of Local Infrastructure (or towards recouping the cost of their provision, extension or augmentation). Where the consent authority is a council or an accredited certifier, a Local Infrastructure contribution may be imposed on a development only if it is of a kind allowed by and determined in accordance with a contribution plan, such as this plan. This plan's main purpose is to authorise the Council or an accredited certifier to impose conditions on development consents or complying development certificates (CDCs) requiring section 7.11 contributions or section 7.12 fixed rate levies from development to which the plan applies. The contributions that are made by developers will be applied by the Council to deliver the schedule of infrastructure land and works shown in Appendix A to this plan. … This plan includes the following: ∙ A schedule of contribution rates for various classes of developments. ∙ Information on how the section 7.11 contribution rates were calculated. …" 1. Page 356: "2. Plan summary 2.1 How to use this plan This plan has been broken up into the following parts to allow easy navigation by Council staff, developers and private certifiers. A brief description of each part is provided below Part 2 – Plan summary This part identifies both the land and development that this plan applies to, as well as the contribution rates that apply to these developments..." 1. Page 357: Part 2.2 (Dictionary) defines "Local Infrastructure" as "Public amenities and public services that are traditionally the responsibility of local government excluding water supply or sewerage services". 2. Page 357: Part 2.4 (What are the purposes of this plan?) authorises the consent authority to require a contribution under s 7.11 or a levy under s 7.12 of the EPA Act, to be made towards the provision, extension or augmentation of Local Infrastructure required as a consequence of development in the Campbelltown LGA, or which were provided in anticipation of, or to facilitate, such development. And the: "Other purposes are as follows: ∙ To provide the framework for the efficient and equitable determination, collection and management of development contributions in Campbelltown LGA. ∙ To establish the relationship between the expected development and proposed Local Infrastructure to demonstrate that the section 7.11 contributions required under the plan are reasonable. ∙ To allow the opportunity for Local Infrastructure to be provided by land developers as works in kind in lieu of paying a monetary contribution. ∙ To allow the opportunity for the dedication of land by land owners at no cost to Council in lieu of a monetary contribution ∙ To ensure that the broader Campbelltown community is not unreasonably burdened by the provision of Local Infrastructure that is required as a result of development in the Campbelltown LGA." 1. Page 357: "2.5 (What land does this plan apply to?) This plan applies to land in Campbelltown LGA identified in Figure 1." 1. Page 358: Part 2.6 (What development does this plan apply to?) describes the relevant section, if type (a), as "Residential development that would result in a net increase in residents on the land". Noting that this CLIC Plan 2018 preceded the Housing SEPP – there is no specific provision for co-living housing. 2. Page 358: Table 2 Development types and the contributions types that apply. The main types that increase the number of residents "boarding houses, group homes, hostels" which are analogous to co-living housing. And page 359, Table 2 continued: Development Contribution type that applied Relevant table in this plan Mixed use development where the development would result in a net increase in dwellings Section 7.11 contributions or section 7.12 levy Table 4 or Table 5 1. Page 360: Table 4 sets out the s 7.11 contributions rates, and Table 5 sets out the s 7.12 levy rates. Table 6 sets out the Assumed Occupancy Rates for calculating contributions and demand credits. 2. Page 361: Part 3 sets out how are the contribution rates calculated, and at reference (c): "Contributions that are imposed must be reasonable (s7.11(2) and (4)), and that a developer may appeal to the Land and Environment court on the grounds that contributions imposed on a development are unreasonable in the particular circumstances of the case (s7.13(3))." 1. Page 381: Part 4.2.3 sets out the latest rates to be used: "The section 7.11 contribution imposed on a development will reflect the latest, indexed contributions rates authorised by this plan. The monetary section 7.11 contribution rates shown in Table 4 reflect the contribution rates at the date of this plan commenced. These rates will be regularly adjusted for inflation and fluctuations in land values (see section 6.3)." 1. Page 385: Part 6.3 (Adjustment of contribution to address the effects of inflation) gives authority to adjust the rates over time. Applicant's submissions 1. Part 3 of Ch 3 "Co-living housing" of the Housing SEPP applies to this DA. Specifically, s 68(2) (Non-discretionary development standards) provides as follows: "(2) The following are non-discretionary development standards in relation to development for the purposes of co-living housing – … (f) for development on land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential – the minimum landscaping requirements for multi dwelling housing under a relevant planning instrument…" 1. The property is zoned R3 Medium Density Residential and a "relevant planning instrument" is defined under Sch 10 of the Housing SEPP to include a "development control plan". 2. Pursuant to the Housing SEPP, s 68(2) of the non-discretionary standards, the minimum landscaping requirements for multi-dwelling housing under CLEP 2015 applies. Relevantly, clause 3.7.2.9(a)(iii) of CDCP 2015 applies which provides that 'no more than 30% of the area forward of any building line shall be surfaced with impervious materials". 3. In contention under Part B2 of Ex 1 is whether Draft Condition 29(c) should be further amended. The contention states: "Pervious driveway A condition of consent should be imposed requiring the plans to be amended to require the driveway to be of full concrete construction." 1. The particulars of this contention are summarised below: 1. The DA as amended proposed that part of the driveway be constructed with a pervious material for a width of 1m on its western extremity. The use of a pervious material for the driveway is not considered necessary as the DA proposes an acceptable extent of pervious area forward of the building line. 2. Concrete for the construction is preferable in terms of achieving a uniform streetscape presentation for the DA, and also for reasons of durability and maintenance given the driveway will be traversed by vehicles. 3. The following condition of consent, in terms similar to the following, should be imposed requiring plans to be amended to provide for the full concrete construction of the driveway: "Amendments to Approved Plans The plans referred to in Condition 1 are to be amended to provide for the driveway to be of full concrete construction. The plans amended pursuant to this condition are to be submitted to and approved by the Council's Manager Development Assessment prior to the issue of the Construction Certificate. The development is to be carried out in accordance with the plans amended in accordance with this condition." 1. Condition 29(c) of the Draft Conditions of Consent, Ex 2 p 4: "29 Amendments to Approved Plans The plans referred to in Condition 1 are to be amended to address the following: a. Deleted. b. Deleted c. The driveway shall be fully constructed of concrete. …" 1. The pervious driveway which is a contention under Part B2 (Contentions to be addressed via conditions) headed "Pervious Driveway" remains to be addressed (Ex 1, pp 8-9). In relation to the pervious driveway, the area of the entire front setback is 5.5m x 15.24 = 83.82m2. 2. The concreted area in the front setback measures 5.5 x 4.32 = 23.76m2. This represents (23.76/83.82) = 28.3% of the total front setback area would be impervious. 3. If the permeable area is extended to 1m on the western edge in Figure 2 below as non-permeable concrete, the total area is 5.5 x 5.5 = 30.25m2. This represents (30.25/83.82) = 36% of the total front setback area which would be impervious. Figure 2: Extract from Drawing No. DA200 "Ground Floor" (prepared by Mike & Morlly Architects, Issue P6, dated 23 April 2024) (taken from the Council's Submissions). 1. Conversion of the driveway material under the proposed Condition 29(c) would exceed the CDCP 2015 control for total impervious area. 2. The second issue in contention is draft Condition 41 and 41A of the Draft Conditions of Consent, Ex 2, pp 12-14. Council's draft Condition 41 is on pp 12-13 of Ex 2, and the Applicant's draft condition 41A is on pp 13-14 of Ex 2. 3. The issue turns on the fact that the particular typology (co-living housing) is not expressly listed in Table 2 of CLIC Plan 2018 (Ex 1, p 358). Notwithstanding the prior opening words in section 2.6 of the Contributions Plan (a) Residential accommodation development that would result in a net increase in residents on the land), we say that it has to be read in conjunction with Table 2 in terms of the typologies set out therein. 4. Monetary contribution: the Applicant contends that a monetary contribution pursuant to s 7.11 of the EPA Act is not required for this 'type' of development as the CLIC Plan 2018 does not have the definition of 'co-living housing', After the date the DA was lodged, Campbelltown Local Infrastructure Contributions Plan 2018 (Amendment 1) came into effect (Amended Contributions Plan). The DA was lodged on 12 July 2023, prior to the Amended Contributions Plan on 27 November 2023. 5. For the reasons set out below, s 7.11 contributions do not apply to this DA: 1. Section 2.2 (Dictionary) of the CLIC Plan 2018 states: "Words and phrases used in this plan have the same meaning as the terms defined in the CLEP 2015, or the EPA Act, except as provided for below. "In this plan, the words and phrases have the meanings as set out in Table 1." 1. Table 1: "Terminology used within this plan", meaning the CLIC Plan 2018 (Ex 1, p 357) does not contain a definition of 'co-living housing', and therefore the applicable definition is the Standard Instrument definition contained in the CLEP 2015. 2. Table 2: "Development types and the contributions types that apply" of the CLIC Plan 2018 (Ex 1, p 358), the Applicant notes that the development type 'co-living housing' is not listed under the "Residential' section. 3. As a statutory instrument made under the EPA Act, the CLIC Plan 2018 is construed according to the ordinary principles of statutory construction (ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 at [28], and Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]-[43]. Accordingly, section 2.6 of Contributions Plan 2015 must be construed having regard to its text and context, which includes its purpose (SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] and [37]-[39]; SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20], and Anglican Church Property Trust Diocese of Sydney v Camden Council [2021] NSWLEC 118 at [77]. 4. The Applicant submits that the opening general statement in section 2.6 of the CLIC Plan 2018, that: "this plan applies to … Residential Accommodation development that would result in a net increase in residents on the land" and such "…developments will be subject to condition requiring a contribution imposed under section 7.11 of the EP&A Act" must be read with the detailed information in Table 2. Table 2 expressly identifies the specific subtypes of 'residential accommodation' where a 7.11 contribution applies. As a matter of ordinary statutory interpretation, the whole of the provision (section 2.6) needs to be read in context including the detail in Table 2. 5. Absent the express inclusion of 'co-living housing' (or houses) in the residential section of the 'development types', must lead to a conclusion that this particular development must be caught by the catch-all in Table 2, i.e. "Other Development" – which applies a levy pursuant to s 7.12 of the EPA Act. 6. Section 4.17(1)(h)(iii) of the EPA Act gives a consent authority power to impose conditions of consent, and provides (inter alia) that a condition of consent may be imposed if it is authorised to be imposed under ss 7.11 or 7.12 of the EPA Act. Section 7.13(1) of the EPA Act provides: "A consent authority may impose a condition under section 7.11 or 7.12 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division)." 1. The Applicant further submits that this is a matter of statutory interpretation and is not a matter that would otherwise trigger the Court's jurisdiction in relation to s 7.13(3) of the EPA Act, i.e. whether the condition is unreasonable. 2. Therefore, it is clear that there is no power to impose s 7.11 development contributions on this DA, as that part of the applicable development CLIC Plan 2018, does not apply to the type of development sought in the application, being co-living housing. 3. However, there is power under the Contributions Plan to impose a levy pursuant to s 7.12 of the EPA Act, in the sum of $8,100 based on the Applicant's Cost Summary Report dated 6 July 2023 submitted with the DA, Ex B. 4. The Applicant refers the Court to Ex 2, pp 12-14 and recommends the deletion of the Council's Draft Condition 41, and the insertion of the Applicant's alternative Condition 41A. Council's submissions 1. In relation to Draft Condition 29(c) of Ex 2, Council submits that having regard to the DA's permissibility with consent being pursuant to the Housing SEPP, Council agrees with the summary provided in pars [15]–[17] in the Applicant's submissions above. 2. It is also not disputed that absent the provision of the permeable paving at the western extremity of the proposed driveway (shown in Figure 2 above) the proposed development will not comply with section 3.7.2.9(a)(iii) in Part 3 of Volume 1 of CDCP 2015, and therefore the non-discretionary development standard in s 68(2)(f) of the Housing SEPP. 3. Condition 29(c) has the effect of amending the DA so that the whole of the proposed driveway shall be constructed of concrete, for the reasons provided in particulars (a) and (b) of Part B2, Contention 1 of Ex 1, notwithstanding that the result would be that the DA does not comply with the non-discretionary development standard. 4. As the development the subject of the DA complies with the non-discretionary development standard, it is s 4.15(2) of the EPA Act, rather than s 4.15(3) of the EPA Act which is invoked. The only fetter on the consent authority's discretion to impose a condition of consent on such development is that which is expressed in s 4.15(2)(c) of the EPA Act, being that the relevant authority must not impose a condition of consent that has the same, or substantially the same, effect as the standard but is more onerous than that standard. 5. The effect of Draft Condition 29(c) is to allow greater than the otherwise allowable maximum impervious area forward of the building line, having regard to the particular circumstances of this case. The draft condition does not offend s 4.15(2)(c) of the EPA Act because it does not have the same, or substantially the same, effect as the non-discretionary development standard, and nor is it more onerous. Draft Condition 29(c) ought to be imposed for the reasons outlined in particulars (a) and (b) of Contention 1 in Part B2 (see [18]-[19] above). 6. In relation to Draft Condition 41, it is well accepted that the development contributions provisions within Pt 7 of the EPA Act are the exclusive source of power to a consent authority to impose a condition on a DA requiring the dedication of land free of cost or the payment of monetary contributions (Fitch v Shoalhaven City Council (1987) 87 LGRA 165 at 170). 7. Section 7.13(1) of the EPA: "(1) A consent authority may impose a condition under section 7.11 o 7.12 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division). … (3) A condition under section 7.11 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction." 1. Council agrees that the CLIC Plan 2018, rather than the Campbelltown Local Infrastructure Contributions Plan 2018 (Amendment 1) applies to the DA due to the time of its lodgement on 12 July 2023. The Contributions Plan commenced on 19 December 2019. 2. The imposition of a condition under s 7.11 of the EPA in terms of Draft Condition 41 (Ex 2) on a development of the kind proposed is authorised by CLIC Plan 2018 for the reasons set out below. 3. The Applicant's argument that the CLIC Plan 2018 does not authorise the imposition of a condition under s 7.11 of the EPA Act is wholly predicated upon the fact that the common development types (typologies) included in Table 2 to section 2.6 of the CLIC Plan 2018 do not expressly refer to 'co-living housing'. This development type did not exist until the Housing SEPP commenced on 26 November 2021, and the State Environmental Planning Policy (Affordable Rental Housing ) 2009 was repealed. 4. Table 2 in section 2.6 of the CLIC Plan 2018 does not purport to be an exhaustive list of the types of residential and non-residential developments to which the differing types of contributions apply. This is clear from the sentence preceding Table 2 which expressly states: "Table 2 shows common development types and the types of contributions that apply to those developments under this plan". 5. The ultimate determinant as to which of the 'contributions types' applies, a s 7.11 contribution or s 7.12 levy under the EPA Act, is governed by (a) and (b) (thereafter called "Type (a) and Type (b)" developments) in the chapeau of s 2.6 of the CLIC Plan 2018. Table 2 merely assists as an aid to the identification of the particular "Type (a)" or "Type (b)" development by reference to "common development types". 6. In that regard, the development proposed is clearly a type of "Residential Accommodation development that would result in a net increase in residents on the land" as per section 2.6(a) of the Contributions Plan as a single-storey brick dwelling is to be demolished and a co-living housing development accommodating a total of 18 residents is to be constructed. The Dictionary in CLEP 2015 as currently in force now identifies "co-living housing" as being a type of "residential accommodation". Whilst "co-living housing" was not separately identified as a type of 'residential accommodation' at the time of the CLIC Plan 2018 commenced, the genus of "residential accommodation" was (and continues to be) an open-ended class and merely required and continues to require that the development be a "building or place used predominantly as a place of residence". It could not reasonably be contended that the proposed development is not such a building or place. 7. The 'co-living housing' development typology was not introduced into the Standard Instrument (and therefore CLEP 2015) until the commencement of the Standard Instrument (Local Environmental Plans) Amendment (Miscellaneous) Order 2021 on 26 November 2021 (SI amendment Order 2021). 8. In addition to introducing the 'co-living housing' development typology, it is relevant to note that the SI Amendment Order 2021 also replaced the previous definition of "boarding house" with the now current definition of that development typology. Prior to the commencement of the SI Amendment Order 2021 and from the date the CLIC Plan 2018 commenced, including section 2.2, the term "boarding house" was defined in CLEP 2015 as follows (Ex 3, Tab 18, pp 450-451, Dictionary in CLEP 2015): "boarding house means a building that: (a) is wholly or partly let in lodgings, and (b) provides lodgers with a principal place of residence for 3 months or more, and (c) may have shares facilities, such as a communal living room, bathroom, kitchen or laundry, and (d) has rooms, some or all of which may have private kitchen and bathroom facilities, that accommodate on or more lodgers, but does not include backpackers' accommodation, a group home, hotel or motel accommodation, seniors housing or a serviced apartment." 1. Given the time at which the CLIC Plan 2018 was adopted, even if the Court were to conclude that it is necessary to refer to Table 2 in the CLIC Plan 2018 to give meaning to the balance of section 2.6 of the Plan, it would be reasonable to characterise the proposed development type as being a "boarding house" for the purpose of the CLIC Plan 2018 having regard to the historical context in which the Plan was made. 2. It is available to the Court to conclude that: 1. The development proposed in the DA is clearly an innominate type of "Residential Accommodation development that would result in a net increase in residents on the land". 2. The development proposed in the DA lodged on 12 July 2023 is of the then 'boarding house' type of "Residential" development with the "common development types" included in Table 2 to section 2.6 of the CLIC Plan 2018. 1. "Contributions plans are not …. To be elevated to some form of delegated legislation" (Rose Consulting Group v Baulkham Hills Shire Council (2003) (2003) 58 NSWLR 159; [2003] NSWCA 266). See Santow JA at [42]-[43], [47]-[49] referring to the predecessor provision to ss 7.13(1), 7.13(3), 7.11(1) and 7.11(2). See also Calleja v Botany Bay City Council (2005) 142 LGERA 104; [2005] NSWCA 337 per Tobias JA at [25]: "… any attempt to always find planning logic in planning instruments is generally a barren exercise". 2. If the Court was minded to apply s 7.13(3), Council relies upon Intrapac Skennars head Pty Ltd v Ballina Shire Council (2021) 249 LGERA 400; [2021] NSWLEC 83 ('Intrapac Skennars'), per Preston CJ at: 1. Paragraphs [40]-[41]: s 7.11 of the EPA Act authorises the imposition of a contribution in two circumstances: ss 7.11(1) and (3). 2. Paragraphs [42]-[45]: sets out the two constraints on exercise of the power: 1. "Section 7.11(2) provides: "A condition referred to in subsection (3) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities an and public services concerned."" 2. "Section 7.11(4) provides: 'A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned."" 3. Section 7.13(1) is subject to a power of dispensation by the Court. It empowers the Court on appeal to disallow or amend a condition under s 7.11 if it is unreasonable in the particular circumstances of the case. 1. As the development is not otherwise exempted under section 2.7 of the CLIC Plan 2018, it follows that the absence of any reference to "Co-living housing" in the "common development types" in Table 2 to section 2.6 of the Plan is not determinative, and is immaterial, and that the Court may and should impose Draft Condition 41 because it is a condition under s 7.11 of a kind allowed by and determined in accordance with s 7.13(1) of the CLIC Plan 2018. 2. If necessary, it is also arguable that Draft Condition 41 may be imposed by the Court on appeal under s 7.13(3) notwithstanding that it may not be determined in accordance with the relevant contributions plan. Section 7.13(3) operates to allow a dispensation from the constraint imposed by s 7.13(1). Findings 1. The DA has owner's consent pursuant to s 4.12 of the EPA Act, and s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). 2. In relation to CLEP 2015 (s 4.15(1)(a)(i) of the EPA Act): 1. The Site is within Zone R3 Medium Density Housing, and shop top housing is permissible with consent. Development for the purpose of co-living housing is an innominate prohibited use under Zone R3, but permissible with consent under the Housing SEPP. The Housing SEPP provides: 1. Part 3 (Co-Living housing) "Development for the purposes of co-living housing may be carried out with consent on land in a zone in which development for the purposes of co-living housing, residential flat buildings or shop top housing is permitted under another environmental planning instrument. Example- Co-living housing may be used as off-campus student accommodation." 1. The DA complies with cl 2.3 (Zone Objectives) and the following objectives of Zone R3 Medium Density Residential: "∙ To provide for the housing needs of the community within a medium density residential environment. ∙ To provide a variety of housing types within a medium density residential environment. ∙ To enable other land uses that provide facilities or services to meet the day to day needs of residents. ∙ To provide for a wide range of housing choices in close proximity to ∙ To minimise overshadowing and ensure a desired level of solar access to all properties." 1. Clause 4.3, and the Height of Buildings Map: the height control is 9m and the DA complies; 2. Clause 4.4 and the Floor Space Ratio Map: the floor space ratio is not applicable to this Site; 3. The Lot Size Map: the lot size map is not applicable to the Site. 4. Clause 7.10: Essential Services, which include "(d) stormwater drainage or on-site conservation". Subject to Conditions of Consent in Annexure A, the stormwater management contention being Contention 2 in Part B1 of Ex 1 was resolved by amended plans. Council is satisfied as to the other essential services to be supplied pursuant to the DA. 5. Clause 7.13: The DA has the approval of Council's Design Review Panel (Ex 3, Tab 8). 6. Council has complied with its Notifications Policy and received one objection (Ex 3, Tab 9, pp 46-52). Council has considered the objection (Ex 3, Tab 10) (s 4.15(1)(d) of the EPA Act). 7. Council has considered the objection and the public interest (s 4.15(1)(e) of the EPA Act) 1. Further in relation to s4.15(1)(a)(i) the Applicant has complied with: 1. The State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 with the filing of the BASIX Certificate No. 1399057M dated 20 June 2023 (Ex A, Tab 17). 2. The Housing SEPP as follows: 1. Section 68 in relation to the non-discretionary development standards, except for s 68(f) which is in contention in these proceedings. 2. Section 69, the standards for co-living housing; 3. The filing of a Plan of Management – Co-living House dated 1 July 2023 for 1 Durham Street Minto NSW 2566 (Ex A, Tab 16). 4. Subject to the Conditions of Consent in Annexure A. 1. State Environmental Planning Policy (Resilience and Hazards) 2021: the Council has not raised any contention regarding this State Environmental Planning Policy. The Site is located within single-storey residential buildings, and a single-storey residential building and garage which is onsite will be demolished (Ex 1, p 3). I accept that further investigation for possible contamination of the Site is not required. 1. The two remaining matters for the Court's determination are: 1. Whether the Draft Condition of Consent as foreshadowed in Ex 1, Further Amended SOFAC, Part B2, Contention 1 (now Condition 29(c) of the Draft Conditions of Consent – Ex 2) may be imposed; and 2. Whether Condition 41 or 41A of Ex 2 should be imposed having regard to ss 7.11(1) and (2) and 7.13 of the EPA Act, and the CLIC Plan 2018. 1. Should Condition 29 be deleted, or should the driveway be constructed entirely of concrete with no pervious area? 1. Pursuant to s 68(2) of the Housing SEPP, as development control plans are deemed to be "planning instruments", the minimum landscaping requirements for multi-dwelling housing is under CDCP 2015. Clause 3.7.2.9(a)(iii) of CDCP 2015 applies which provides that "no more than 30% of the area forward of any building line shall be surfaced with impervious materials". 2. The Applicant contends that as s 68(2) of the Housing SEPP is part of the non-discretionary standards, that the driveway as described as 'pervious' in Ex A Tab 3: Ground Floor Plan No. DA200 Rev 7 should not be amended. By creating part of the driveway as 'permeable paved' the Applicant meets the standard of "no more than 30% of the area forward of any building line shall be surfaced with impervious materials". 3. For the reasons set out in Ex 1, Part B2, proposed condition 1 (now 29(c)), the Council submits that in accordance with the particulars set out therein, the whole of the driveway forward of the building line should be concreted – essentially to address commonality in this suburban streetscape, and that the DA proposes an acceptable level of pervious area forward of the building line. The Council relies on the application of s 4.15(2) of the EPA Act. 4. In the usual case, it would be the Applicant arguing that compliance with the standard is not necessary in the circumstances, and the drafting of s 4.15(2) addresses that situation. It is unusual for Council to be requesting the Court to apply s 4.15(2) to relieve compliance with the development standard. 5. I note the reasons for Council's position in Ex 1, Part B2, as set out in the Particulars. However, I also note par [14] of Ex 1 where Council states: "Dominant characteristics of the existing built form in the local area include generous landscaped areas forward of the building line and habitable room windows facing the street. Vehicle parking areas are typically setback behind the primary building line and are not visually prominent." 1. After considering both submissions, and the content of Ex 1, I find that the permeable paved area adjacent to the concrete driveway as requested by the Applicant will address both the non-discretionary standard, and the streetscape by reducing the width of the hard-stand concrete driveway, and enhancing the pervious area. 2. I find that Condition 29 in the Draft Conditions of Consent (Ex 2) should be deleted. 1. Should Condition 41 or 41A of the Draft Conditions of Consent in Ex 1 remain? 1. The parties are agreed that if I find: 1. Section 7.11 of the EPA Act applies then the contribution is $125,832.76 (Ex 2, pp 12-13); or 2. Section 7.12 of the EPA applies then the contribution is $8,100.00 (Ex 2, pp 13-14). 1. I note that the DA was lodged on 12 July 2023 and the CLIC Plan 2018 was in place. Amendment 1 to the CLIC Plan 2018 commenced on 19 December 2023, and clause 3.2 provides the transitional provision that development applications lodged prior to 19 December 2023 will be assessed under CLIC Plan 2018. Therefore the relevant plan is CLIC Plan 2018. 2. The Applicant relies upon the fact that 'co-living housing' as a residential type of housing is not listed in Table 2 of section 2.6 of the CLIC Plan 2018. "2.6 What development does this plan apply to? Subject to Section 2.7, this plan applies to: (a) Residential Accommodation development that would result in a net increase in residents on the land (b) other development that has a proposed cost of more than $100,000. Type (a) developments will be subject to condition requiring a contribution imposed under section 7.11 of the EP&A Act. Type (b) developments will be subject to a condition requiring the payment of a levy under section 7.12 of the EP&A Act. Where a single development application comprises a mix of type (a) and (b) developments, either a section 7.11 contribution or a section 7.12 levy will be imposed. The contribution method which produces the greater amount will be the method used for that application. Table 2 shows common development types and the types of contributions that apply to those developments under this plan. (1) Development with a cost exceeding $100,000 only. (2) Only required where development involves an enlargement, expansion or intensification of a current use of land, as required under 25J(3)(g) of the EP&A Regulation. (3) The contribution type used will be the type that yields the highest contribution amount, refer to Section 2.9.1 of the plan for details Refer to Section 2.9 of this plan for the rates that apply to different development types." 1. Section 2.10, calculates s 7.11 contributions, and sets out the assumed occupancy rates and demand credits in Table 6. Relevant to this case are: Development type Assumed occupancy rate Residential accommodation Detached Dwelling houses, dwelling with 3.16 persons per dwelling 3 or more bedrooms ... ... Boarding houses 1 person per bed Group homes 1 person per bed Hostels 1 person per bed 1. The Applicant rests its case on the fact that 'co-living housing' is not one of the common typologies listed in Table 2 of the CLIC Plan 2018. 2. The dictionary of the CLIC Plan 2018 (clause 2.2) does not have a definition of co-living housing, and "words and phrases" used in this plan have the same meaning as the terms defined in the CLEP 2015, or the EPA Act, except as provided for below. In this plan, the words and phrases have the meanings as set out in Table 1. 3. As a statutory instrument made under the EPA Act, the CLIC Plan 2018 is construed according to the ordinary principles of statutory construction (as set out above by the Applicants at [28] above. The Applicant concludes its argument by limiting the residential development referred to in section 2.6(a) to those residential typologies listed in Table 2. 4. The Applicant contends that the DA falls within "other development" under Table 2, and therefore a s 7.12 levy applies. 5. I prefer the submissions of the Council in regard to this issue. The development type of co-living housing did not exist until the Housing SEPP commenced on 26 November 2021. 6. I have set out section 2.6 and Table 2 of the CLIC Plan 2018 above because the case of both parties rests on the interpretation of this section. Section 2.6 answers the question of what developments the plan applies to? Put simply: "(a) Residential accommodation which would result in a net increase to residents on the land; or (b) other…" 1. Under "other" there is no typology of residential accommodation listed in Table 2. It only appears under the heading "Residential" in Table 2. 2. The heading for Table 2 is: "Development types and the contributions types that would apply". Table 2 is not intended to exclusively list every type of possible development, especially one that has not been designed prior to the adoption of CLIC Plan 2018. The chapeau for Table 2 states: "Table 2 shows common development types and the types of contribution that apply to those developments under this plan". 3. Co-living housing as a development type has only existed since the Housing SEPP commenced on 26 November 2021, just over two and a half years ago. Although it is likely to be a common type of residential development in the future, one could hardly expect the Council to have inserted it in its contributions plan three years before this type of development existed. 4. I find that co-living housing is a type of residential development in accordance with section 2.6 (a) of CLIC Plan 2018. 5. The typology of co-living housing falls within Table 2 under the common typologies of "Boarding houses, group homes, hostels" for the purpose of determining that s 7.11 of the EPA Act applies, and the assumed occupancy rates under Table 6 of CLIC Plan 2018. The only other possible type listed within Table 2 is seniors living housing, either independent units or integrated facilities with residential care facilities, neither of which apply when considering how the contribution is calculated under Table 6 (that is, 3.16 per dwelling vs 1 per private room for boarding houses/group homes/hostels vs , or 1.66 persons per dwelling for seniors development). 6. In considering the statutory regime, and taking into account the text and context of the application of developer contributions, section 2.6 cannot be viewed alone. Consideration also needs to be given in this case to sections 2.2, and 2.10 of CLIC Plan 2018. Therefore, pursuant to s 4.17(1) of the EPA Act and s 39(2) of the LEC Act, I find that the DA is likely to require the provision for, or increase in demand for, public amenities and public services within the area pursuant to s 7.11(1) of the EPA Act. 7. I note the amount of contribution has been agreed between the parties, and I am not required to decide the reasonableness of the contribution to be paid (Intrapac Skennars, per Preston CJ at [40]-[45].) 8. The Draft Conditions of Consent in Ex 2 are to be amended to delete condition 41A, leaving condition 41. 9. I shall uphold the appeal, and direct the parties to file a final copy of Annexure A – Conditions of Consent in relation to conditions 29(c) and 41A. 10. The Court orders that: 1. The appeal is upheld. 2. The Respondent delete Conditions 29 and 41A of Exhibit 2 (Draft Conditions of Consent) and file these Conditions of Consent as Annexure A within 7 days of these orders. M Peatman Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 July 2024