Land and Environment Court New South Wales Medium Neutral Citation: Chen v Auburn City Council [2015] NSWLEC 1379 Hearing dates: 26 August 2015 Date of orders: 18 September 2015 Decision date: 18 September 2015 Jurisdiction: Class 1 Before: Pearson C Decision: 1. The appeal is dismissed. 2. The application to modify Development Consent No 174/2014 granted by the Council on 26 September 2014 for a secondary dwelling at 2 Eric Crescent Lidcombe is refused. 3. The exhibits are returned except for exhibits 1, 3, A and B. Catchwords: DEVELOPMENT MODIFICATION – Secondary dwelling – Provision of on-site parking – Whether total floor area for secondary dwelling exceeded Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Standard Instrument (Local Environmental Plans) Order 2006 Standard Instrument (Local Environmental Plans) Amendment Order 2007 Auburn Local Environmental Plan 2010 Cases Cited: Bardsley-Smith v Penrith City Council [2012] NSWLEC 79 Chamwell Pty Ltd v Strathfield Council[2007] NSWLEC 114 Lizzio v Ryde Municipal Council (1983) 155 CLR 211 Category: Principal judgment Parties: Bin Chen (Applicant) Auburn City Council (Respondent) Representation: Solicitors: Mr J Burrell, Burrell Solicitors Mr A Gough, Storey & Gough Lawyers (Respondent) File Number(s): 10485 of 2015 Judgment 1. This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of an application made under s 96(1A) of the Act to modify development consent No 174/2014 granted by the Council on 26 September 2014 for a secondary dwelling at 2 Eric Crescent Lidcombe (the site). 2. The site has an area of 373.19sq, and the improvements are a two storey dwelling house. The first floor is occupied by the principal dwelling, which has four bedrooms, living and dining, two bathrooms, kitchen and an external balcony, and is accessed by external stairs on the northern elevation. Development application No 174/2014 was made in respect of unauthorised works to the building, and consent was granted for use of part of the ground floor of the building as a secondary dwelling, with an area of 55.76sqm and comprising a kitchen, laundry/bathroom and bedroom with ensuite. The ground floor also includes a storeroom and two attached garages with driveways from Eric Crescent. 3. Development consent No 174/2014 included condition 4 in the following terms: Use of storage and garage within ground floor level The storage and garage areas (1 & 2) within the ground floor level on the subject site shall not be used for habitable purposes. The storage and garage areas are to be used strictly in conjunction with the main dwelling house and shall not form part of the adjacent secondary dwelling house. In this regard, a fire rated wall is to be provided between the secondary dwelling and the garages (1 & 2) and storage areas in accordance with the National Construction Code. Access doors from garage (1 & 2) shall be deleted from all plans. Details are to be submitted prior to the issue of a Building Certificate. Reason: to clarify the terms of this development consent and to comply with BCA requirements. 1. On 6 February 2015 the applicant lodged the application to modify development consent 174/2014 to amend condition 4 to permit the secondary dwelling to have access to and the use and enjoyment of the second garage (for off street parking). The application was refused on 20 May 2015. Issues 1. The Council contends that there is no power to approve the modification application because the inclusion of the garage would result in a total floor area for the secondary dwelling in excess of 60sqm, contrary to cl 22(3)(b) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH); and that approval of the modification application would result in a ground floor dwelling that is not subservient or secondary to the principal dwelling so that there would not be a principal dwelling and a secondary dwelling on the land, in contravention of cl 22(2) of SEPPARH. Planning Controls 1. The site is in the R3 Medium Density Residential zone under the Auburn Local Environmental Plan 2010. Development for the following purposes is permissible with consent in the R3 zone: Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Child care centres; Community facilities; Dual occupancies; Dwelling houses; Group homes; Multi dwelling housing; Neighbourhood shops; Places of public worship; Respite day care centres; Roads; Semi-detached dwellings; Seniors housing; Any other development not specified in item 2 or 4. 1. Prohibited development includes "residential accommodation", which is defined in the LEP to mean: residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following: (a) attached dwellings, (b) boarding houses, (c) dual occupancies, (d) dwelling houses, (e) group homes, (f) hostels, (g) multi dwelling housing, (h) residential flat buildings, (i) rural workers' dwellings, (j) secondary dwellings, (k) semi-detached dwellings, (l) seniors housing, (m) shop top housing, but does not include tourist and visitor accommodation or caravan parks. 1. It was common ground that development for the purposes of "secondary dwellings", as a form of "residential accommodation" not specified as a nominate form of development permissible with consent, is prohibited in the R3 zone. 2. The LEP defines "secondary dwelling" in the following terms: secondary dwelling means a self-contained dwelling that: (a) is established in conjunction with another dwelling (the principal dwelling), and (b) is on the same lot of land as the principal dwelling, and (c) is located within, or is attached to, or is separate from, the principal dwelling. Note. See clause 5.4 for controls relating to the total floor area of secondary dwellings. 1. Clause 5.4(9) of the LEP provides: 5.4 Controls relating to miscellaneous permissible uses … (9) Secondary dwellings If development for the purposes of a secondary dwelling is permitted under this Plan, the total floor area of the dwelling (excluding any area used for parking) must not exceed whichever of the following is the greater: (a) 60 square metres, (b) 25% of the total floor area of the principal dwelling. 1. Part 2 Div 2 of the SEPPARH provides for secondary dwellings. Relevant provisions include cl 19, and cl 22: 19 Definition In this Division: development for the purposes of a secondary dwelling includes the following: (a) the erection of, or alterations or additions to, a secondary dwelling, (b) alterations or additions to a principal dwelling for the purposes of a secondary dwelling. Note. The standard instrument defines secondary dwelling as follows: secondary dwelling means a self-contained dwelling that: (a) is established in conjunction with another dwelling (the principal dwelling), and (b) is on the same lot of land (not being an individual lot in a strata plan or community title scheme) as the principal dwelling, and (c) is located within, or is attached to, or is separate from, the principal dwelling. … 22 Development may be carried out with consent (1) Development to which this Division applies may be carried out with consent. (2) A consent authority must not consent to development to which this Division applies if there is on the land, or if the development would result in there being on the land, any dwelling other than the principal dwelling and the secondary dwelling. (3) A consent authority must not consent to development to which this Division applies unless: (a) the total floor area of the principal dwelling and the secondary dwelling is no more than the maximum floor area allowed for a dwelling house on the land under another environmental planning instrument, and (b) the total floor area of the secondary dwelling is no more than 60 square metres or, if a greater floor area is permitted in respect of a secondary dwelling on the land under another environmental planning instrument, that greater floor area. (4) A consent authority must not refuse consent to development to which this Division applies on either of the following grounds: (a) site area if: (i) the secondary dwelling is located within, or is attached to, the principal dwelling, or (ii) the site area is at least 450 square metres, (b) parking if no additional parking is to be provided on the site. (5) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (4). 1. The SEPPARH does not define the term "secondary dwelling", or "total floor area" or "floor area". Clause 4(2) provides that a word or expression used in the SEPPARH "…has the same meaning as it has in the standard instrument (as in force immediately before the commencement of the Standard Instrument (Local Environmental Plans) Amendment Order 2011) unless it is otherwise defined" in the SEPPARH. 2. The Dictionary to the standard instrument which applied immediately before the commencement of the Standard Instrument (Local Environmental Plans) Amendment Order 2011) contained the following definitions: secondary dwelling means a self-contained dwelling that: (a) is established in conjunction with another dwelling (the principal dwelling), and (b) is on the same lot of land (not being an individual lot in a strata plan or community title scheme) as the principal dwelling, and (c) is located within, or is attached to, or is separate from, the principal dwelling. … gross floor area means the sum of the floor area of each storey of a building measured from the internal face of external walls, or the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine within the storey, and (b) habitable rooms in a basement, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: … (g) car parking to meet any requirements of the consent authority (including access to that car parking), … 1. The Auburn Development Control Plan 2010 (the DCP) includes provisions for Detached Dwellings and Dual Occupancies, and Parking and Loading. Section 10.0 of the DCP Detached Dwellings and Dual Occupancies provides for Secondary dwellings, with the following objectives: a.To facilitate the provision of secondary dwellings (ie granny flats) as an alternative dwelling type to detached dwellings and dual occupancy dwellings. b.To encourage the provision of affordable housing. c.To provide greater housing styles and choice. d.To cater for changing population demographics and living patters including extended families, aging parents and older children living at home and over longer periods. e.To ensure a secondary dwelling is secondary in size, scale and nature, and subservient to the principal dwelling. f.To ensure secondary dwellings do not detract from the improvement of the character of the locality in which it is located. g.To ensure secondary dwellings do not detract from the form, scale and height of development in the streetscape and locality in which it is located. h.To encourage integrated design of secondary dwellings with primary dwellings. 1. Section 10.6 of the DCP Detached Dwellings and Dual Occupancies provides: 10.6 Minimum dwelling size Performance criteria P1 Secondary dwelling sizes are suitable for a variety of dwelling types and to cater for modest accommodation. Notes: Refer to clause 5.4(9) of Auburn LEP 2010. The area of a secondary dwelling does not include any area set aside for the parking of motor vehicles. 1. Section 4 of the DCP Parking and Loading includes provisions for parking for residential development, being general controls and controls for specific residential development, which specify minimum car parking provisions required. Evidence 1. The matter commenced on site as a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 (the Court Act). The parties did not reach agreement and the conciliation was terminated, and the matter proceeded to a hearing. 2. Expert planning evidence was provided on behalf of the applicant by Mr Ben Latta, and on behalf of the Council by Mr Michael Lawani. Mr Latta and Mr Lawani provided individual statements of evidence (exhibits C, 2), and gave oral evidence. 3. Mr Latta was of the opinion that while neither the SEPPARH nor the LEP specifically require provision of off-street parking for a secondary dwelling, the SEPPARH does not prohibit or discourage such provision. Clause 22(4)(b) precludes a council from refusing consent to a secondary dwelling on the ground that no additional parking is to be provided, however the SEPPARH generally supports provision of parking. Table 2 in section 4.2.1 of the DCP requires a maximum of two spaces per dwelling and a minimum of one covered space per dwelling for a dwelling house and dual occupancy. Provision of one of the single garages for residents of the secondary dwelling would reduce on-street parking demand, and provide a benefit to the residents without significant detrimental effect on the residents of the principal dwelling. In his opinion the storage and parking are ancillary to the dominant habitable use, and there is no material intensification of development on the site or additional external impacts. The exclusion in cl 5.4(9) of the LEP of any area used for parking in the total floor area of the secondary dwelling is consistent with cl 13(3) of the SEPPARH. Section 10.6 of the DCP also excludes any area set aside for parking for a secondary dwelling. If not for the minimum site area requirement of cl 23(1)(d) of the SEPPARH, the secondary dwelling would be complying development under the SEPPARH. 4. In Mr Lawani's opinion neither the LEP nor the DCP have a requirement for the provision of car parking for the type of development proposed, and as parking is not required for a secondary dwelling the garage should be included in the floor area of the secondary dwelling. The ground floor dwelling would have a floor area of 91.2sqm which is not secondary to the principal dwelling contrary to cl 22(2) of SEPPARH. 5. In oral evidence Mr Latta and Mr Lawani agreed that the area of the principal dwelling is approximately 145sqm upstairs (excluding the balcony) and 21.5sqm for the ground floor storage area, totalling 161.5sqm, and that if the garage is included with the secondary dwelling it would have an area of 91sqm. Mr Lawani agreed that in his opinion there should be parking for most residential development, however the issue is what are council requirements, and there is no specific requirement for parking for a secondary dwelling. He agreed that it is good planning to have parking. The reason why council does not require parking is because its inclusion would increase the floor space ratio (FSR) of the development. Mr Latta stated that there is space in front of both garages to have cars, and inclusion of the garage with the secondary dwelling would have no external impact on the property or the streetscape and would reduce on-street parking demand. Consideration 1. The applicant submits that there is no jurisdictional issue if the Court considers on the merits that provision of car parking is a reasonable and proper planning provision. It is open for the Court to conclude that parking ought to be provided, and parking would then be a "requirement" of the consent authority for the purposes of the definition of "gross floor area". There is no express provision in the planning instruments not to have car parking, and the DCP does not state that parking must be provided for a secondary dwelling. However, section 10.6 of the DCP is an expression of Council policy that parking be provided. A secondary dwelling is a form of residential development and so there is no basis for excluding it. There is no increase in habitable space, and no change in what comprises the "dwelling", and allowing the garage to be used by the secondary dwelling does not alter that. Even if the car parking has to be included in the FSR that would not preclude consent for the secondary dwelling because the requirement is that the habitable dwelling not exceed 60sqm: a secondary dwelling is a "dwelling" and a garage is not included as it is not habitable space. If there is an inconsistency between a definition in the standard instrument and the SEPPARH it should be resolved in favour of the substantive provision, namely cl 22(3)(b). The development as modified is substantially the same as that originally approved because there is no physical change and the only change is in the use. The garage is an ancillary use. The central issue is whether the garage is included in the "dwelling". 2. The Council submits that cl 22(3)(b) of the SEPPARH must be satisfied before there can be any consideration of whether provision of parking is reasonable. Clause 22(3)(b) is not expressly limited to habitable space. Clause 5.4(9) of the LEP does not apply, as the development is not permissible under the LEP and the only basis for its approval is under Part 2 Div 2 of the SEPPARH. The Council submits that "total floor area" and "gross floor area" are the same concept, and relate to the entirety of the floor area provided by the secondary dwelling. If those terms are not the same, an ordinary interpretation of "total floor area" would include off street parking constructed within the walls of a building. The application is to use that area of the building for the purpose of the secondary dwelling, and it is irrelevant if it is to be used for a non-habitable purpose. The Council submits that the secondary dwelling as approved is 55sqm, or approximately 23 percent of the area of the principal dwelling; if the garage (35.4sqm) is transferred to the secondary dwelling from the principal dwelling, the secondary dwelling would be 91sqm, or 45 percent of the area of the principal dwelling. Findings 1. It was common ground that Part 2 Div 2 of the SEPPARH is the only source of power to consent to the secondary dwelling, such development being prohibited under the LEP, applying cl 8 of the SEPPARH. The starting point in consideration of whether this application can be approved is cl 22(3)(b) of the SEPPARH. It was common ground that if the garage is to be included in the "total floor area" of the secondary dwelling, it would exceed the 60sqm specified in cl 22(3)(b) and the application cannot be approved. 2. Based on the view, both garages are incorporated within the external walls of the building. There is presently a doorway leading from the garage into the approved secondary dwelling; condition 4 in development consent 174/2014 would require that that doorway be deleted, while the applicant seeks to have the existing door retained. 3. The term "total floor area" is not defined in the SEPPARH, the standard instrument, or the LEP. Both parties referred to the definition of "gross floor area" in the standard instrument, applying cl 4(2) of the SEPPARH. The Council's position was that the terms "gross floor area" and "total floor area" are interchangeable, as both "gross" and "total" are defined in the Macquarie Dictionary as meaning "whole" or "entire". For the reasons which follow, I am not satisfied that even if that is a correct approach, paragraph (g) of the definition of "gross floor area" would apply to exclude the floor area of the garage. 4. The applicant's position is that applying the definition of "gross floor area", paragraph (g) would exclude the floor area of the garage if the Court is satisfied that off-street parking is required. The Court is, pursuant to s 39(2) of the Court Act, exercising the functions and discretions of the Council in determining this appeal. However, I do not accept that a determination on the merits that on-site parking should be provided in a particular instance could properly be described as "car parking to meet any requirements of the consent authority". Calculation of total floor area should not, in my opinion, rest on a subjective determination on the merits, particularly as in this instance the only evidence before the Court on which a conclusion that car parking should be provided is the evidence of the expert planners that as a general proposition, off street parking should be provided. The proper basis for determining what are "the requirements" of the consent authority should, in my opinion, be the planning controls applicable to the particular site and the form of development proposed for it. 5. The LEP does not specify any requirement for parking for development for the purposes of a secondary dwelling. Section 2.0 of the DCP Parking and Loading provides the objective of ensuring "that an acceptable level of parking is provided on-site to minimise adverse impacts on surrounding streets", and has three performance criteria: P1 New development provides adequate off-street parking to service the likely parking demand of that development. P2 New development does not introduce unnecessary or excessive off-street parking. P3 Parking provided for development which is not defined in this Part is based on sound and detailed parking assessment. 1. The Development Controls provide that all new development provide off-street parking "in accordance with the parking requirement tables of the respective developments…"; and where a land use is not defined in that part of the DCP, a development application is accompanied by "a detailed parking and assessment prepared by a suitably qualified professional…". Section 3.0 provides for design of parking facilities, and section 4.0 for Residential development. The general controls applicable to all residential development address requirements for driveways and entrances. Section 4.2 provides requirements for detached dwellings and dual occupancies, section 4.3 for multi dwelling housing, section 4.4 residential flat buildings; and sections 4.6 and 4.7 deal with the former Lidcombe Hospital site and the Newington residential part. 2. There is no express reference to development for the purpose of a secondary dwelling in the DCP Parking and Loading. I do not accept the applicant's submission that Table 2 in section 4.2.1 is relevant, as that applies expressly to detached dwellings and dual occupancies, which are both distinct types of "residential accommodation", as are "multi dwelling housing" and "residential flat buildings", and "secondary dwellings". That is reinforced by section 10.0 Secondary Dwellings of the DCP Detached Dwellings and Dual Occupancies which makes it clear that a secondary dwelling is regarded within the DCP as a distinct form of residential accommodation, when it expresses the objective of facilitating "the provision of secondary dwellings (ie granny flats) as an alternative dwelling type to detached dwellings and dual occupancy dwellings". Had the DCP intended to provide a minimum (or maximum) off-street parking requirement for a secondary dwelling it could have done so. The absence of such a requirement is consistent with the performance criteria in section 2.0 of the DCP Parking and Loading, which refer both to provision of adequate off-street parking, and not introducing unnecessary or excessive off-street parking. The statement in section 4.0 of the objective (a) "to provide convenient and safe access and parking that meets the needs of all residents and visitors" at its highest would require consideration of convenience and safety, and does not operate to impose a requirement for provision of on-site parking. 3. The absence of a requirement for provision of on-site parking for a secondary dwelling in the LEP and DCP is not inconsistent with cl 22(4)(b) of the SEPPARH, which provides that failure to provide any on-site parking is not a basis on which development consent could be refused. There being no specific requirement in the planning controls for provision of on-site parking for a secondary dwelling, paragraph (g) of the definition of "gross floor area" would not apply, and the floor area of the garage would not be excluded from the total floor area of the secondary dwelling. 4. The applicant's alternative submission was that the garage should not be regarded as forming part of the secondary dwelling as it is not constructed or adapted to be lived in and is not residential accommodation, and that the habitable area of both the principal and secondary dwellings remains the same. In support of this submission the applicant relies on the definition of "dwelling" in the standard instrument: dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. 1. The applicant's position is that the garage is ancillary to the primary habitable purpose of the secondary dwelling, to be used in conjunction with the primary legal use as a dwelling without expanding or supplanting that use, and therefore does not form part of the secondary dwelling. 2. The applicant's reliance on authorities relevant to determining when a use is ancillary to another use for the purpose of characterising development so as to determine its permissibility (Chamwell Pty Ltd v Strathfield Council[2007] NSWLEC 114, Bardsley-Smith v Penrith City Council [2012] NSWLEC 79, Lizzio v Ryde Municipal Council (1983) 155 CLR 211) does not assist. There is no dispute that provision of on-site parking in the form of a garage would properly be regarded as ancillary to the use for the purpose of a dwelling, in this instance a secondary dwelling, and thus permissible with consent under Part 2 Div 2 of the SEPPARH. The issue is whether the floor area of that garage is to be included in the "total floor area" of the secondary dwelling. 3. In that regard, it is important to read cl 22(3)(g) in context. Clause 22 of the SEPPARH applies to development for the purpose of a secondary dwelling for which development consent is required, as opposed to complying development for that purpose provided for in cl 23. The site does not meet the minimum site area of 450sqm for the application of cl 23. Clause 22 provides the threshold requirements for the granting of consent to the carrying out of development for the purposes of a secondary dwelling (cl 19) on land to which Div 2 of Part 2 applies, including land in the R3 zone (cl 20). Subclause 22(3) imposes restrictions on the total floor area, first, for the principal dwelling and secondary dwelling combined (cl 22(3)(a)); and further, for the secondary dwelling itself. There is no indication in the language used in cl 22(3) that only the habitable parts of either the principal dwelling or the secondary dwelling are to be considered in determining whether the combined, or separate, floor area limitations are met. 4. In the alternative to its submission that the term "total floor area" is interchangeable with the defined term "gross floor area", the Council submitted that an ordinary interpretation of the term "total floor area" would include off-street parking constructed within the walls of the building. 5. If the term "total floor area" is not to be interpreted by reference to the defined term "gross floor area", its meaning must be determined in accordance with general principles of interpretation, that is, having regard to the text itself, and the context including the general purpose and policy of the provision. The ordinary meaning of the term must be determined, with appropriate assistance from dictionaries. The Macquarie Dictionary provides a range of meanings for the adjective "total", the first being "constituting or comprising the whole; entire; whole". Part 2 of Div 2 of the SEPPARH makes permissible development for the purposes of a secondary dwelling limited by compliance with the restrictions first as to the zoning of the land, and secondly, for development that does not meet the criteria to be determined as complying development pursuant to cl 23, by the provisions of cl 22. Clause 22(2) imposes constraints both as to the number of resulting dwellings on the land and the combined, and separate, sizes of the principal and secondary dwelling. Having regard to those constraints, which are consistent with the operation of an avenue for permissibility of a form of development as an exception to prohibition under the applicable local environmental plan, and to the absence in cl 22(3)(b) of any indication that only the habitable parts of either the principal dwelling or the secondary dwelling are to be considered, I agree with the Council that the "total floor area" for the secondary dwelling would include all the elements of that dwelling, which would include a garage attached to that dwelling. While cl 5.4(9) of the LEP in terms excludes any area used for parking from the total floor area of a secondary dwelling, and section 10.6 of the DCP refers in a note to that provision, cl 5.4(9) applies only if development for the purposes of a secondary dwelling is permissible under the LEP. There is no equivalent provision in the SEPPARH, which is the only source of permissibility of the secondary dwelling approved for the site, such as to displace the ordinary meaning of the term used in cl 22(3). Conclusion 1. For the reasons above, whether the "total floor area" of the secondary dwelling is to be determined by reference to the definition of "gross floor area", or on the ordinary meaning of the term, I am satisfied that the garage is to be included. It was common ground that if it is, the total floor area of the approved secondary dwelling would be 91.2sqm. The development as modified would result in a secondary dwelling having a floor area exceeding the 60sqm specified in cl 22(3)(b) of the SEPPARH, and the application cannot be approved. 2. This conclusion means that it is unnecessary to address the Council's second contention that the proposed modified development would result in a ground floor dwelling that is not subservient or secondary to the principal dwelling. It is also unnecessary to address the applicant's submission that the application should be approved on its merits. 3. The orders of the Court are: 1. The appeal is dismissed. 2. The application to modify Development Consent No 174/2014 granted by the Council on 26 September 2014 for a secondary dwelling at 2 Eric Crescent Lidcombe is refused. 3. The exhibits are returned except for exhibits 1, 3, A and B. 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: 18 September 2015