Land and Environment Court New South Wales Medium Neutral Citation: Anthony Makerry v Inner West Council [2016] NSWLEC 1660 Hearing dates: 10 October 2016 Date of orders: 22 December 2016 Decision date: 22 December 2016 Jurisdiction: Class 1 Before: Dixon C Decision: (1) The appeal is upheld (2) The clause 4.6 variation to compliance with the minimum subdivision lot size development standard in clause 4.1 of the Ashfield Local Environmental Plan 2013 for land at 35 Hardy Street, Ashfield is accepted. (3) Development consent is granted for a boundary adjustment of the two existing Torrens Title allotments - Lot 6 in DP 664688 and Lot E in DP 104282 at 35 Hardy Street, Ashfield subject to Council's conditions in Annexure A. (4) The exhibits are returned apart from exhibit 4 & A. Catchwords: APPEAL : Development application for subdivision of land - boundary adjustment of two existing lots – variation of minimum allotment size Legislation Cited: Environmental Planning and Assessment Act 1979 Ashfield Local Environmental Plan 2013 Ashfield Council Interim Development Assessment Policy 2013 Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827 Category: Principal judgment Parties: Anthony Makerry (Applicant) Inner West Council (Respondent) Representation: Solicitors: A Whealy, Mills Oakley (Applicant) K Webber, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2016/191482 Publication restriction: No JUDGMENT 1. This judgment concerns a development application appeal made by the applicant, Anthony Makerry, under s97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) for the subdivision or boundary adjustment of two residential allotments in Ashfield. 2. I have decided to grant development consent to the application in accordance with the council's draft conditions in exhibit A subject to the following variations: 1. The first paragraph of condition 2 is imposed, and the second paragraph is deleted. 2. Condition 3, in respect of a s94 monetary contribution, is deleted. 3. Condition 7, in relation to stormwater design, needs to be deleted as this matter needs to be properly dealt with when a final design for a semi- attached or dual occupancy development on the land is submitted as anticipated by exhibit C. 1. My reasons for approving of the application for a boundary adjustment are set out below. OVERVIEW 1. The application seeks approval of the adjustment of the boundary between lot 6 in DP664658 and lot E in DP104282 at 35 Hardy Street, Ashfield (the "site"). Lot 6 in DP66468 is presently 113.8 metres square and lot E in DP104282 is presently 518.5 metres squared. 2. After the boundary adjustment or subdivision Lot E will have an area of 307.15 metres squared and Lot 6 will have an area of325.715 metres squared. Both allotment will have a frontage to Hardy Street of 6.92 metres. 3. The council has refused its consent to the application because the resulting lots will be less than the minimum subdivision lot size under cl 4.1 of the Ashfield Local Environmental Plan 2013 ("ALEP") which applies. The applicant has lodged a 4.6 variation to cl 4.1; however, the council does not support the variation to the minimum lot size development standard under cl 4.6 on the basis that the proposal fails to address the matters identified in cl 4.63 and 4.6(4) (a) (ii) and does not provide sufficient justification that the proposal will be in the public interest. Thereby contrary to cl 4.6(4) (a) (ii). 4. The council's statement of facts and contention sets out the relevant background and the statutory controls. The following matters are not contentious. The site is zoned R2 low density residential under ALEP. The proposed development is permissible with consent. The site presently contains a dwelling house which is constructed across the boundary between lot 6 and lot E. While the application does not include any demolition or construction works, it is intended that the site would be developed for semi‑attached or dual occupancy development in accordance with the proposed site plan in annexure C of the joint report, exhibit 2. The site is not identified as a heritage item, nor is it within the heritage conservation area. The locality of the site is characterised by a distinct residential character with a mix of housing types, including semis, dual occupancies, single and double storey dwelling houses and a large residential care facility opposite the site. It is also close to transport, local amenities, parks, shops et cetera. 5. The proposal seeks to mirror other subdivision allotments of land proximate to the site, particularly 18 to 20 Hardy Street, which also depart from the minimum lot size standard under the ALEP. There is no regular subdivision pattern as such in the locality. EXPERT EVIDENCE 1. The parties rely upon expert town planning evidence. Mr Nino was the consultant planner for the applicant, and his statement of environmental effects was tendered to the Court. It is exhibit C. Mr Kirk appeared for the council, and together with Mr Nino prepared a joint planning report, which is exhibit 2. Apart from the ALEP, the experts agree that the Ashfield Council Interim Development Assessment Policy 2013 ("IDAP") is relevant, although it does not have the status of a DCP. MINIMUM LOT SIZE 1. Clause 4.1 of the ALEP provides as follows: 4.1 Minimum subdivision lot size 1. The objectives of this clause are as follows: 1. to maintain the existing pattern of subdivision within heritage conservation areas in terms of lot size and lot dimensions, 2. to provide opportunities for infill small lot subdivision in areas close to transport and amenities in a manner that does not adversely impact on the streetscape or amenity of residential areas, 3. to provide for small lot subdivision in certain areas close to public transport as an alternative to redevelopment for the purpose of multi dwelling housing in order to retain the scale and character of the area, 4. to ensure that lot sizes allow development to be sited to protect and enhance riparian land. 1. This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan. 2. The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land. 3. This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme. (4A) For the purpose of calculating the size of a battle‑axe lot, the area of the access handle is excluded. 1. 4.1A Exceptions to minimum subdivision lot size for certain residential development 1. The objective of this clause is to encourage housing diversity without adversely affecting residential amenity. 2. Despite clause 4.1 (3), development consent may be granted to the subdivision of land identified as "Area 1" on the Lot Size Map that is not within a heritage conservation area if: 1. each lot resulting from the subdivision will be at least 200 square metres, and 2. a semi‑detached dwelling is or will be located on each lot, and 3. each lot will have a minimum street frontage of 7 metres. 1. Despite clause 4.1 (3), development consent may be granted to the subdivision of land identified as "Area 2" on the Lot Size Map if: 1. (a) each lot resulting from the subdivision will be used for the purpose of a dwelling house, and 2. (b) each lot resulting from the subdivision will be at least 174 square metres, but will not exceed 450 square metres, and 3. (c) the total number of lots on that land will not exceed 11." COUNCIL'S POSITION 1. The council contends on the evidence of Mr Kirk the proposed boundary adjustment will result in both lots being below the 500 metre squared minimum lot size and, that this would undermine the integrity of the development standard in cl 4(1) of the ALEP. In his assessment, the ALEP adequately provides for lot sizes below 500 metres square by the operation of cl 4.1A, which is ancillary to cl 4.1, and the identification of land identified within area 1, that is not a heritage conservation area, and the land identified within area 2 on the lot size map. 2. As this site is outside area 1 and 2, the exceptions to the minimum subdivision lot size do not apply and in Mr Kirk assessment there are no special circumstances or anything specific to the site that justifies the proposed non‑compliance with cl 4.1 of the ALEP. 3. The 4.6 variation submitted in annexure D, exhibit 2, discusses future development on the site such as dual occupancy, which is permissible and can be achieved without carrying out the proposed boundary adjustment. Mr Kirk is firmly of the opinion that the cl 4.6 request does not demonstrate how the proposal achieves a better planning outcome than a proposal compliant with the cl 4.1. APPLICANT'S POSITION 1. Mr Nino disagrees. He is of the opinion that it is unreasonable and unnecessary to comply with the minimum lot size in this case because the site is unique. The site already comprises two existing lots that are of different sizes. All that is sought is a boundary adjustment, not the creation of a new allotment. Lot 6 only has an area of 113 metres squared and is generally incapable of being separately developed. The approval of the application will make both lots developable, promote the orderly economic development of land, which is an objective of the EP&A Act and is mirrored in the aims of the ALEP in cl 1.2. Mr Nino believes that given the unique circumstances of this site it will not set an adverse precedent for other development in the area should this application be approved. 2. It is further submitted that the subdivision will be imperceptible to the public. The only difference will be the legal title to each lot. The site will be able to be developed for the purposes of a dual occupancy or a semi‑detached development, irrespective of the outcome of the appeal; however, the subdivision creates additional housing choices and a dual occupancy must be in the same ownership, whereas this has the opportunity of providing independent title to young couples to afford properties within this area and this meets the objectives of cl 4.1; namely, for infill, small lot subdivision areas close to transport and amenities in a manner that does not adversely impact on the streetscape or amenity of residential areas. 3. The site is not a heritage item and not within a conservation area and there is no discernible impact on neighbours, no planning affectation or characteristics to characterise the site as environmentally sensitive. The resultant lots will have a seven metre frontage, with a lot size capable of accommodating a dwelling in the form of a semi‑detached dwelling on each lot similar to others in Hardy Street. CLAUSE 4.6 VARIATION 1. Clause 4.6 of the LEP permits variation of development standards 2. 4.6 Exceptions to development standards 1. The objectives of this clause are as follows: 1. to provide an appropriate degree of flexibility in applying certain development standards to particular development, 2. to achieve better outcomes for and from development by allowing flexibility in particular circumstances. 1. Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. 2. Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: 1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and 2. that there are sufficient environmental planning grounds to justify contravening the development standard. 1. Development consent must not be granted for development that contravenes a development standard unless: 1. the consent authority is satisfied that: 1. the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and 2. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and 1. the concurrence of the Secretary has been obtained. 1. In deciding whether to grant concurrence, the Secretary must consider: 1. whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and 2. the public benefit of maintaining the development standard, and 3. any other matters required to be taken into consideration by the Secretary before granting concurrence. 1. Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if: 1. the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or 2. the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. 1. Note. When this Plan was made it did not include all of these zones. After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). 1. This clause does not allow development consent to be granted for development that would contravene any of the following: 1. a development standard for complying development, 2. a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, 3. clause 5.4." CONSIDERATION 1. There is no doubt that cl 4.1 of the ALEP is amenable to cl 4.6 variation despite the council's argument. Relevantly, the R2 zone is not nominated in cl 4.6(6) and therefore not expressly excluded from the operation of the clause. 2. The applicant's final written request under a cl 4.6 for a variation to compliance with cl4.1 of the ALEP is in annexure D of the joint planners' report. The applicant submits that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) and (4) in accord with the principles outlined in Wehbe v Pittwater Council [2007] NSWLEC 827 at [42], and Four2Five Pty Ltd V Ashfield Council [2015] NSWLEC 90 (Pain J). The applicant submits that the 4.6 request establishes that despite the non‑compliance with the standard, the relevant objectives of cl 4.1 are achieved; namely, objectives (b) and (c). 3. The written request states that the site is located within proximity to public transport, being 550 metres to the bus services on the corner of New Canterbury Road and Old Canterbury Road, Hurlstone Park. Additionally, the site is within proximity to local amenities such as local shops at Hurlstone Park, local parks and the Ashfield centre. The boundary adjustment creates two more even‑shaped lots which will sit without adverse impact in the streetscape. They will be of sufficient size to accommodate new semi‑detached dwellings which are permissible in the R2 zone. In short, the development increase housing choices in the location and meets the express aim in cl 1.2 of the ALEP. 4. The request provides that the compliance with the minimum subdivision lot size standard is unreasonable and unnecessary given the proposal complies with and meets the relevant objectives of the standard and, therefore, the proposal is equivalent to, or put simply, the same as a development that would strictly comply with the numerical minimum of subdivision lot size standard. The boundary adjustment will enable two semi‑detached dwellings within a low density residential environment, providing for the housing needs of the community and in accord with the objectives as outlined earlier. 5. In my assessment, the cl 4.6 exception has addressed the five criteria under Wehbe and satisfies two of the criteria, (a) and (c), and thereby compliance with the standard is unreasonable and unnecessary. The application satisfies cl 4.6(3)(a). 6. With respect to the assessment under 4.6(3) (b), the submission is that the site is unique; namely, it is rare and unusual for a site to comprise two lots in the current arrangement. While exhibit 7 demonstrates that there may be other sites within the general area which contain two lots; however, I am satisfied that an approval of the boundary adjustment in this case will not have a precedent effect because each case must be assessed on its own merits and facts. The evidence is that the proposal does not result in undue or adverse environmental planning impacts in terms of shadow, amenity, privacy, traffic, and view loss and streetscape presentation. There were no objectors to the application. By providing subdivision for a semi‑detached dwelling that is identical to an attached dual occupancy as anticipated by the IDAP controls provides as the applicant submits the benefit of housing choices for the community. 7. In my assessment, the proposal achieves compliance with the relevant objectives of the minimum lot size control (b) and (c) as the applicant submits. Furthermore, I am satisfied that the proposal meets the objectives of the Act in that it promotes the orderly and economic use of the land by providing two allotments which have the capacity to increase housing opportunities which are proximate to bus and other community services. I observed at the view the location of the bus services some 550m from the site. In my assessment, there are sufficient environmental planning grounds in this case to justify the variation sought. The written request, which articulates the particular circumstances of the proposed development, demonstrates that compliance with the minimum lot size standard is unreasonable and unnecessary in the case. Accordingly, cl 4.6(3) (b) is satisfied. 8. In short, there is no public benefit in maintaining the minimum lot size development standard in this particular case. The variation request to compliance with the standard is in my opinion well‑founded for the reasons stated. CONDITIONS OF CONSENT 1. As indicated earlier in this judgment I believe that it is necessary to modify certain of the Council's draft conditions in exhibit A. My reasons for such modifications are set out below. 2. Condition 2 deals with the future development of the site. It requires any future development applications (s) for the erection of buildings upon the two allotments comprising the site shall be in the form of attached dwellings with each dwelling sitting wholly upon its own allotment but being attached to the adjacent dwelling by a common wall having a nil setback to the adjacent dwelling (presently defined as a semi-detached dwellings under the ALEP). Having regard to the variation of the minimum lot size approved of in this appeal it is important that the first paragraph of condition 2 be imposed as this will ensure that any future development on these smaller lots is appropriate within the streetscape. The particular design, however, should be dealt with at a subsequent DA stage rather than be mandated by a condition of consent for the subdivision. Therefore, the second paragraph of condition 2 is deleted. 3. Condition 3 seeks to impose a s 94 monetary contribution. Such a condition is in my opinion premature. I agree with the applicant that the s 94 contribution should be imposed when the needs generated by the development are better understand by the proposed design at the DA stage. This condition should be deleted. 4. Condition 7 deals with the stormwater design and an easement to allow for a gravity drainage line to traverse the allotments and be connected to the Council's drainage system. The applicant opposes such a condition on the basis that it has never been raised at any stage of the DA assessment or in the Council's SOFC and only raised the day before the hearing in the draft conditions served. In that circumstance the applicant complains that it has not had fair opportunity to seek advice from drainage consultants as to whether this condition is appropriate. Moreover, the condition was included based on the advice of Mr Kirk and has not been the subject of consultation with the Council's engineers. The applicant believes that there are a number of engineering solutions which should be explored as part of the DA for demolition and building works. For example, an absorption system below the rear gardens coupled with a charge d system to the street. To the extent that he Council relies on it stormwater policies (Part E of the Ashfield IDAP) those policies do not require drainage to be resolved as part of a paper subdivision. I accept the applicant's submissions for the deletion of the condition. In my opinion it is more appropriate in this instance to deal with the design of stormwater after a proper consideration of all of the various engineering options at the DA stage when the particular development sought to be approved is better understood. I believe that Condition 7 is premature in this particular case and should not be imposed as a condition of the subdivision consent. 5. In all other respects the council's draft conditions are acceptable and should be imposed. 6. For the reasons provided above the Court makes the following orders: 1. The appeal is upheld 2. The clause 4.6 variation to compliance with the minimum subdivision lot size development standard in clause 4.1 of the Ashfield Local Environmental Plan 2013 for land at 35 Hardy Street, Ashfield is accepted. 3. Development consent is granted for a boundary adjustment of the two existing Torrens Title allotments - Lot 6 in DP 664688 and Lot E in DP 104282 at 35 Hardy Street, Ashfield subject to Council's conditions in Annexure A. 4. The exhibits are returned apart from exhibit 4 & A. ................... Susan Dixon Commissioner 191482.16 Dixon (C) (24.9 KB, pdf) Amendments 07 March 2017 - Conditions attached 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: 07 March 2017