Land and Environment Court New South Wales Medium Neutral Citation: Assaf v Parramatta City Council [2012] NSWLEC 1254 Hearing dates: 17 July, 10 August 2012 Decision date: 11 September 2012 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal dismissed Catchwords: DEVELOPMENT APPLICATION - Affordable rental housing - Equivalent zone Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Parramatta Local Environmental Plan 2001 Parramatta Local Environmental Plan 2011 Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Planning Policy (Affordable Housing) 2009 State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011 Cases Cited: Chami v Bankstown City Council [2011] NSWLEC 1311 Chami v Blacktown City Council [2012] NSWLEC 1120 Chehade v Bankstown City Council [2012] NSWLEC 1122 Stebbings v Byron Shire Council [2012] NSWLEC 1129 Category: Principal judgment Parties: Elias Assaf (Applicant) Parramatta City Council (Respondent) Representation: Solicitors Mr M Mantei (Applicant) Ms C Morton (Respondent) File Number(s): 10199 of 2012 Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Parramatta City Council (the Council) of Development Application DA/312/2011 for demolition, tree removal and construction of multi unit housing at 2 Mayfield Street Wentworthville (the site). The site and locality 2The site is located on the north-eastern corner of Mayfield Street and Briens Road, Wentworthville. The site has an overall area of 860 sq m, and is an irregular shaped allotment of land, having a frontage of 28 m to Briens Road and 36 m to Mayfield Street. There is a single storey aluminium clad detached dwelling house on the site. 3Located to the south and east of the site is Milson Park, which runs along the eastern side of Briens Road. There is a residential flat building on the opposite side of Milson Park. Development in Mayfield Street and Briens Road and other streets in the locality is a mix of single and two storey detached dwelling houses, with some dual occupancy developments. 4The site is in close proximity to the confluence of Toongabbie, Coopers, Finlaysons and Milson (Westmead) Creeks, and is subject to flooding. The proposal 5The development application sought consent for a two storey development for multi unit housing containing five dwellings, with off street parking along the eastern boundary of the site with access off and to Briens Road. Twenty percent of the floor space was proposed to be provided for the purpose of affordable housing for a minimum ten year period. 6Following a conciliation conference under s 34 of the Land and Environment Court Act 1979, the applicant obtained leave to amend the application. The proposal now before the Court is for the demolition of the existing dwelling, tree removal, and the erection of two residential flat buildings each containing three dwellings, and each addressing a street frontage. Three car spaces and one disabled car space are proposed along the eastern boundary of the site with access to and from Briens Road. Twenty percent of the floor space is proposed to be provided for the purpose of affordable housing for a minimum ten year period. Issues 7The issues are whether the proposed development is permissible under the State Environmental Planning Policy (Affordable Housing) 2009, and if so, whether the development is compatible with the character of the local area. 8The Council's contentions included contentions that the proposed development did not provide sufficient car parking spaces; was contrary to the aims and objectives of the relevant zone; failed to satisfy design requirements in the Parramatta Development Control Plan 2005; and that inadequate information had been provided addressing the flooding issues on the site. Evidence 9The hearing of the matter commenced on site with a view, including a view of the surrounding streets and development. Evidence was given on site by five objectors, Mr Mark Dalton, Mrs Barbara Dobie, Ms Pam Hexham, Mr Walter Fisk, and Ms Christine Glass-van der Beck. Their evidence raised concerns as to the compatibility of the proposal with the character of the area; flooding; traffic and parking; and the appearance of the proposed development. Written objections were in evidence (exhibit 1, tab 7; exhibit 7). 10Expert planning evidence was given on behalf of the applicant by Mr Mark Shanahan and on behalf of the Council by Mr Duncan Livingstone. Mr Shanahan and Mr Livingstone provided a joint report (exhibit 4) and gave oral evidence on the first day of the hearing. The planners disagreed on the extent of the "local area" and whether the design of the development is compatible with the character of the local area; which standards relating to height and floor space ratio should be applied; whether the proposed car parking arrangement was adequate; whether the development was contrary to the aims and objectives of the relevant zone; and how the controls in the Parramatta Development Control Plan 2005 should be applied. 11Expert evidence on engineering issues was given on behalf of the applicant by Mr Tim Hutchinson and on behalf of the Council by Mr Elie Azzi. Mr Hutchinson and Mr Azzi provided two joint reports (exhibits 5 and 8). In their Position Paper filed 2 August 2012 (exhibit 8) the engineers reached agreement that stormwater plans (drawing No S11051 (C01 Rev C dated 30/7/12), (C03 Rev A dated 30/7/12) and a Flood Evacuation Diagram prepared by BG&E Pty Ltd addressed the contentions raised by the Council relating to flooding and stormwater issues. 12The planners responded to the Position Paper provided by the engineers (exhibit 8) in a Position Paper filed 9 August 2012 (exhibit 9), in which they disagreed as to whether the revised arrangements for hardstand car spaces was appropriate, and whether conditions requiring landscaping outside the street building alignment should be imposed. Planning controls 13The development application was lodged on 13 May 2011. The site was then zoned 2(a) Residential under the Parramatta Local Environmental Plan 2001 (the 2001 LEP). On 7 October 2011 the Parramatta Local Environmental Plan 2011 (the 2011 LEP) came into effect, and the land is now zoned R2 Low Density Residential. 14Both the 2001 LEP and the 2011 LEP permit dwelling houses with consent on the site. Development for multi unit housing and residential flat buildings is prohibited under both the 2001 LEP and the 2011 LEP. The 2011 LEP includes cl 1.8A, which provides that the development application, having been made and not finally determined before the commencement of the 2011 LEP, must be determined as if the 2011 LEP had not commenced. 15At the date of lodgement of the development application, Part 2 Div 1 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the AH SEPP) made provision for In-fill affordable housing. Clause 12 provided that development to which Div 1 of the AH SEPP applied was permissible with consent. Clause 10 specified the land to which Div 1 applied, and cl 11 specified the development to which Div 1 applied. Clause 10 provided: 10 Land to which Division applies (1) This Division applies to a development site on land if the development site is within any of the following land use zones or within a land use zone that is equivalent to any of those zones, but only if development for the purposes of dwelling houses, multi-dwelling housing or residential flat buildings is permissible within the zone: (a) Zone R1 General Residential, (b) Zone R2 Low Density Residential, (c) Zone R3 Medium Density Residential, (d) Zone R4 High Density Residential. 16Clause 11 provided: 11 Development to which Division applies This Division applies to the following development on land to which this Division applies: (a) development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings where at least 50 per cent of the dwellings in the proposed development will be used for affordable housing, but only if: (i) the development does not result in a building on the land with a building height of more than 8.5 metres, and (ii) in the case of development for the purposes of a residential flat building-residential flat buildings are not permissible on the land otherwise than because of this Policy, (b) development for the purposes of residential flat buildings where at least 20 per cent of the dwellings in the building will be used for affordable housing, but only if: (i) residential flat buildings are permissible on the land otherwise than because of this Policy, and (ii) the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register. 17On 20 May 2011 the AH SEPP was amended by State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011. Clause 10 of the AH SEPP following those amendments (the Amended AH SEPP) provides: 10 Development to which Division applies (1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if: (a) the development concerned is permitted with consent under another environmental planning instrument, and (b) the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977. 18Clause 54A was inserted in the AH SEPP: 54A Savings and transitional provisions-2011 amendment (1) Division 1 of Part 2, as in force before its amendment by State Environmental Planning Policy Amendment (Affordable Rental Housing) 2011 (the amending SEPP), continues to apply to development, if: (a) the land on which the development is situated is owned by the Land and Housing Corporation and was owned by that Corporation immediately before the amendment, and (b) the development is commenced not later than 2 years after the amendment. (2) If a development application (an existing application) has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made. (3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. (4) Despite subclause (2), clause 13 (2) (as in force before the amendments made by the amending SEPP) does not apply to development the subject of an existing application and any such application is to be determined by applying instead clause 13 (2) and (3) as inserted by the amending SEPP. Whether the proposed development is permissible 19Multi unit housing and residential flat buildings are prohibited land uses in the 2(a) Residential zone under the 2001 LEP and in the R2 Low Density Residential zone under the 2011 LEP. The applicant relies for permissibility on the provisions of Part 2 Div 1 of the AH SEPP, and on the discretion conferred by cl 54A of the Amended AH SEPP to determine the application under the provisions of the AH SEPP as in force at the date of lodgement of the application, subject to the application of the character test in cl 54A(3). 20The Council's position as identified in its Statement of Facts and Contentions was that while the proposed development would be prohibited under both the 2001 LEP and 2011 LEP, and under the Amended AH SEPP, it was appropriate to apply the discretion conferred by cl 54A to assess the application under the provisions of the AH SEPP before its amendment. The Council contended that, applying cl 54A(3) of the AH SEPP, the development would not be compatible with the existing and desired future character of the local area. 21During the course of the first day of hearing, when the applicant was self represented, the Court raised with the parties the issue of whether the development application met the requirements of an "existing application" as defined in cl 54A(2) of the Amended AH SEPP. The concern was that while the development application had been made before 20 May 2011, unless it was an application "in relation to development to which [the] SEPP applied" before 20 May 2011, the proposed development may not be permissible, and if so, there would be no jurisdiction to grant consent even if the discretion conferred by cl 54A was exercised in the applicant's favour, and the development was assessed as appropriate on its merits. 22The hearing was adjourned, and on the resumption of the hearing the applicant was represented by a legal practitioner. The parties' representatives made submissions on permissibility, which focussed on the requirement in the former cl 10(1) of the AH SEPP that the land on which the development was proposed was within any of the specified land use zones, or "within a land use zone that is equivalent to any of those zones". Applicant's submissions 23The applicant submits that consideration of whether the 2(a) Residential zone is "equivalent to" any of the named zones is to be undertaken by reference to the Standard Instrument under the Standard Instrument (Local Environmental Plans) Order 2006 as in force immediately before the commencement of the Standard Instrument (Local Environmental Plans) Amendment Order 2011. It is relevant that the land uses nominated in the zoning tables in the Standard Instrument are not the only land uses that are permitted under the Standard Instrument. The test in cl 5(1) of the AH SEPP requires a comparison between the permitted land uses in the zone under the non-standard instrument and those permitted in the R1 and R2 zones under the Standard Instrument. The Standard Instrument anticipates and provides for additional permitted uses to be added by individual planning authorities provided those uses are not inconsistent with the mandatory provisions of the Standard Instrument and comply with any relevant directions. 24The applicant describes the approach adopted to the equivalent zone test in cl 5(1) in Chami v Bankstown City Council [2011] NSWLEC 1311; Chami v Blacktown City Council [2012] NSWLEC 1120; Chehade v Bankstown City Council [2012] NSWLEC 1122; and Stebbings v Byron Shire Council [2012] NSWLEC 1129, of comparing all the permitted uses in the non-standard instrument zone with all of the mandatory permitted uses in the Standard Instrument zones, as the "broad" approach. The applicant submits that contrary to that approach, the correct approach is to confine the comparison to only the mandatory permitted uses in the Standard Instrument and their equivalent uses in the non-standard instrument (the "narrow" approach). In the applicant's submissions, the broad approach will almost always yield a significant difference (qualitatively and quantitatively) between the Standard Instrument zones and the non-standard instrument zone because of the way in which the Standard Instrument distinguishes between mandatory and additional provisions. The list of permitted uses in residential zones under non-standard instruments are typically numerous in number and diverse in purpose and they will always outnumber the mandatory permitted uses under the Standard Instrument. Under the narrow approach there is a greater probability that non-standard land-use zones will meet the equivalent land use zone test in cl5(1). That would promote the purpose of the AH SEPP which is to provide a consistent approach to the planning regime for affordable rental housing and to expand the zones in which affordable rental housing is permissible. Council's submissions 25The Council submits that the approach adopted in Chami v Blacktown City Council [2012] NSWLEC 1120; Chehade v Bankstown City Council [2012] NSWLEC 1122; and Stebbings v Byron Shire Council [2012] NSWLEC 1129, should be applied in this case. Comparing permissible uses in the four residential zones under the Standard Instrument against the uses permitted in the 2(a) Residential zone under the 2001 LEP, given the significant difference in the nature of uses permissible in the 2(a) Residential zone when compared to permissible uses in the R1 or R2 zone, the relevant zones are not equivalent. As there are no high density equivalent uses permitted in the 2(a) Residential zone, that zone does not have an equivalent zone under the Standard Instrument. On that basis the proposed development would be prohibited. 26The Council submits that even if the 2(a) Residential zone is equivalent to the R2 zone, the proposed development should now properly be characterised as being for two residential flat buildings, and as only 20 percent of the floor space is proposed to be used for the purpose of affordable housing, cl 11(b)(i) is not satisfied and the development would be prohibited. Findings 27It was not in dispute that whether characterised as multi dwelling housing or as residential flat buildings, the proposed development was not permissible in the 2(a) Residential zone under the 2001 LEP, and would not be permissible in the R2 Low Density Residential zone under the 2011 LEP. It therefore would not satisfy cl 10(1)(a) of the Amended AH SEPP. 28The issue is whether the proposed development was, at the date of lodgement of the development application, permissible under the AH SEPP as in force on that date. If so, cl 54A(2) would apply and the development application could be determined as if the amending SEPP had not been made. 29The relevant provisions of the AH SEPP at the date of lodgement were those in Part 2 Div 1, in particular cll 10, 11 and 12. As at the date the development application was made, cl 11 identified the development to which Part 2 Div 1 applied; and cl 10 identified the land to which Part 2 Div 1 applied. 30Clause 10(1) required that the land be within one of the named land use zones, or "within a land use zone that is equivalent to any of those zones", provided that development for the purposes of dwelling houses, multi-dwelling housing or residential flat buildings is permissible with that zone. Dwelling houses were permissible in the 2(a) Residential zone, and so that proviso is satisfied. The 2001 LEP was not made as provided by s 33A(2) of the Act, and accordingly cl 5 of the AH SEPP applies: 5 Interpretation-references to equivalent land use zones (1) A reference in this Policy to a land use zone that is equivalent to a named land use zone is a reference to a land use zone under an environmental planning instrument that is not made as provided by section 33A (2) of the Act: (a) that the Director-General has determined under clause 1.6 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 is a land use zone in which equivalent land uses are permitted to those permitted in that named land use zone, or (b) if no such determination has been made in respect of the particular zone, is a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone. (2) An assessment made by a relevant authority under subclause (1) (b) applies only in respect of the particular development that is proposed to be carried out and more than one such assessment may be made in respect of the same land use zone. (3) In this clause, relevant authority means: (a) the public authority proposing to carry out the development, or on whose behalf the development is proposed to be carried out, or (b) if the development is to be carried out by or on behalf of a person other than a public authority, the consent authority. Note. Land use zones that are named in this Policy are those set out in the standard instrument. 31It was common ground that the Director-General has not made a determination in regard to equivalent zones, and accordingly cl 5(1)(b) of AH SEPP requires the Court to form an opinion as to whether the 2(a) Residential zone under the 2001 LEP is a land use zone in which equivalent land uses are permitted to those in a named land use zone. I agree with the applicant that the appropriate comparison is with the Standard Instrument and not with the subsequent 2011 LEP. 32Clause 5(1)(b) refers to "land uses" in the plural. It is therefore necessary to make a judgment as to whether the set of permissible land uses within a zone is equivalent to the set of permissible land uses in another. It is also necessary to take into consideration the land uses that are not common between the 2(a) Residential Zone under the 2001 LEP and the named land use zone in order to form an opinion as to the equivalence of the two zones. Clause 5(1)(b) does not distinguish between permissible uses with or without consent. 33Clause 5(1)(b) uses the term "equivalent", and I agree with the applicant that this requires something that is "equal in value, measure, force, effect, significance" or "corresponding in position, function etc " (Macquarie Dictionary 3rd edition), rather than the same or identical. 34The applicant submitted that the proper approach is first to identify the land uses permitted in the named zones under the Standard Instrument and then compare those with the land uses permissible in the 2001 LEP, and to confine the comparison to only the mandatory permitted uses in the Standard Instrument and their equivalent uses in the non-standard instrument zone. In my view, that approach is not what cl 5(1)(b) requires. Clause 5(1)(b) directs attention to the land uses permitted in the land use zone under consideration (in this case, the 2(a) Residential zone), and requires comparison with the uses permitted in the Standard Instrument. There is no basis in the drafting of cl 5(1)(b) for limiting the consideration of the land uses permissible in the land use zone under consideration to those which have an equivalent in the Standard Instrument. To adopt that approach would, in my view, defeat the purpose of requiring consideration of equivalence between the Standard Instrument permissible uses and those in fact permissible under the non-standard instrument. 35I agree with the approach adopted in Chami v Blacktown City Council [2012] NSWLEC 1120; Chehade v Bankstown City Council [2012] NSWLEC 1122; and Stebbings v Byron Shire Council [2012] NSWLEC 1129, in particular, in undertaking the comparison reflecting both numerical and qualitative equivalence. I note that that approach does not preclude a land use zone in a non-standard instrument being regarded as equivalent to a named land use zone (see Stebbings v Byron Shire Council [2012] NSWLEC 1129). That approach is not inconsistent with the aims of the AH SEPP, in particular (b), which is "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". That aim, which is reflected in such provisions as the former cl 11 imposing a threshold of use of proposed dwellings for affordable housing, is to facilitate development for affordable housing, with appropriate threshold requirements and standards. 36The following table undertakes a comparison of land uses permissible in the 2(a) Residential Zone (2001 LEP), with those in the R1 General Residential Zone and R2 Low Density Residential Zone (Standard Instrument). Permissible uses (with or without consent) in each zone are marked by a dot. The table equates land uses which are described differently, but which are in substance equivalent. While the table commences with the uses permissible in the 2(a) Residential zone, in my view the outcome of the comparison would not differ if it commenced with the uses permissible in the Standard Instrument zones. USE 2(a) R1 R2 Attached dwellings ● Bed and breakfast establishments ● Boarding houses ● ● ● Car parking spaces ● Centre based child care services (child care centres) ● ● Community facilities ● ● Drainage (other than minor drainage works) ● Dual occupancies ● Dwelling houses ● ● ● Educational establishments ● Granny flats ● Group homes ● ● Home based child care services (home based child care) ● Home businesses (Home occupations) ● ● Hospitals ● Hostels ● Housing for older people or people with a disability (Seniors housing) ● ● Local shops (Neighbourhood shops) ● ● Medical consulting rooms ● Multi-dwelling housing ● Places of public worship ● ● Portable recycling facilities ● Public buildings ● Public utility installations (other than gas holders and generating works) ● Public transport facilities ● Recreation areas ● Recreation facilities ● Residential flat building ● Respite day care centres ● Roads ● Semi-detached dwellings ● Shop top housing ● Telecommunication facilities ● 37Comparing the 2(a) Residential Zone (2001 LEP) to the R1 Zone (Standard Instrument), uses common to both zones are boarding houses, centre based child care services, community facilities, dwelling houses, home businesses, housing for older people or people with a disability, local shops and places of public worship. There are 17 additional uses permissible in the 2(a) Residential Zone (2001 LEP), which are not permissible in the R1 Zone (Standard Instrument), including uses as diverse as educational establishments, hospitals and public buildings. 38Comparing the 2(a) Residential Zone (2001 LEP) to the R2 Zone (Standard Instrument), uses common to both zones are boarding houses, dwelling houses and home businesses. There are 22 additional uses permissible in the 2(a) Residential Zone (2001 LEP), which are not permissible in the R2 Zone (Standard Instrument). 39In considering the set of permissible uses in the 2(a) Residential Zone (2001 LEP) and the set of permissible uses in either the R1 or R2 Zones (Standard Instrument), there are significant differences, not only in the numerical tally of shared and exclusive uses, but also in terms of the nature of the uses permissible in the 2(a) Residential Zone, when compared to the permissible uses in either the R1 or R2 Zones. 40The R3 Medium Density Residential zone under the Standard Instrument permits the same uses as those permissible in the R1 Zone other than dwelling houses, hostels, residential flat buildings, semi-detached dwellings, and shop top housing. 41In considering the set of permissible uses in the R2 and R3 Zones (Standard Instrument) and whether they are permissible, or prohibited, in the 2(a) Residential Zone (2001 LEP), the numerical tally of shared uses is similar. However, the nature of development envisaged by the uses permitted in the R3 Zone is significantly different from the low density residential character reflected in the 2(a) Residential zone. 42I am not satisfied that equivalent land uses are permitted in the 2(a) Residential zone to those permitted in the named zones under the Standard Instrument. Clause 5(1)(b) is not satisfied. 43The applicant submitted that the permissible land uses in the 2(a) Residential zone should include "group homes", on the basis that a group home is probably equivalent to the definition of a "dwelling" and thus would be permissible if in the form of a dwelling house or a dwelling in a dual occupancy. I am not persuaded that that approach reflects the required comparison between the land uses that are in fact permissible in the non-standard zone and those permissible in the Standard Instrument, or that even if that approach were adopted it would alter the conclusion above. 44The proposed development depends for permissibility on cl 12 of the AH SEPP before its amendment. The land the site of the proposed development is not land to which cl 10 of the AH SEPP, before its amendment, applied, and cl 11 does not apply. Part 2 Div 1 did not apply, and the proposed development was not development to which the AH SEPP applied before its amendment on 20 May 2011. Accordingly, cl 54A(2) is not met. Conclusion 45The proposed development is not permissible under the 2001 LEP or the 2011 LEP, or under the AH SEPP, and consent cannot be granted. That conclusion makes it unnecessary to reach a concluded view on the merits of the application. I would note, however, that if cl 54A(2) had applied, I would agree with the Council and the expert planners that it would be appropriate, having regard to the aims of the AH SEPP and the fact that the proposed development would not satisfy cl 10(1)(a) so as to be permissible under the Amended AH SEPP, to exercise the discretion in favour of determining the application under the provisions of the AH SEPP as at the date of lodgement, subject to consideration of whether the design of the development is compatible with the character of the local area as required by cl 54A(3). It is not appropriate to express a concluded view on that, and the other, issues addressed by the expert planners, or on the proposed conditions relating to stormwater and flooding issues, in particular because the submissions on the merits made on behalf of the applicant were necessarily limited. Orders 46The orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA/312/2011 for demolition, tree removal and construction of multi unit housing at 2 Mayfield Street Wentworthville, is refused. 3. The exhibits are returned except for exhibits A and 2. ____________ Linda Pearson 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: 11 September 2012