Land and Environment Court New South Wales Medium Neutral Citation: Hiep Van Nguyen & Anor v Canterbury-Bankstown Council [2017] NSWLEC 1234 Hearing dates: 3 and 4 April 2017 Date of orders: 11 May 2017 Decision date: 11 May 2017 Jurisdiction: Class 1 Before: Smithson C Decision: 1. The appeal is dismissed. 2. Development Application DA-381/2016 for shop-top housing at 1 Cambridge Avenue, Bankstown is refused. 3. The exhibits, except Exhibits A, B and 1, are returned Catchwords: DEVELOPMENT APPLICATION: shop top housing; minimum lot size; minimum lot width; amalgamation requirement; clause 4.6; site isolation; building separation; setbacks; solar access; apartment design; overdevelopment; site suitability; precedent Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Bankstown Local Environmental Plan 2015 Cases Cited: Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Category: Principal judgment Parties: Hiep Van Nguyen (First Applicant) Tien Van Nguyen (Second Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: Ms S Duggan (Applicant) Solicitors: Mr V Conomos, Conomos Legal (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 2016/340406 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under section 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Canterbury-Bankstown Council (the Council) of development application no. DA-381/2016 for shop top housing at 1 Cambridge Avenue, Bankstown (the site). 2. The application, as amended, proposes the construction of a four storey shop top housing development containing a ground floor neighbourhood shop and parking for six cars, two motorcycles and two bicycles, with three residential levels above. The upper levels contain three 2 bedroom units and one 1 bedroom unit, as well as private and communal open space. 3. The contentions raised by the Council as grounds for refusal were that the site had inadequate area and width to accommodate the development proposed requiring amalgamation and, as a result, the proposed development was an overdevelopment of the site. The applicant claimed that the site was unable to be amalgamated with adjoining sites to create the required area and width due to the unwillingness of the adjoining landowner to sell but that the development ought be approved in any event on its merits and given the circumstances. The site and locality 1. The site is identified as Lot 2 in DP 313774. It has an area of 490.6m² with a frontage of 12.19m to Cambridge Avenue and a partial secondary frontage of 20.8m to Cambridge Lane. The site is currently occupied by a detached dual occupancy and is relatively flat. 2. The site is located in the R4 High Density Residential zone under the Bankstown Local Environmental Plan 2015 (the LEP). It is situated at the border of the R4 High Density Residential zone and the B2 Mixed Use zone. 3. The site is on the northern side of Cambridge Avenue and is adjoined on its northern and eastern boundaries by non-residential, predominantly industrial uses. West of the site are one and two storey dwellings whilst development to the south, on the opposite side of Cambridge Avenue, comprises a currently vacant retail centre and a three storey residential flat building. Background to the appeal 1. The application was lodged in April 2016 and was notified in May 2016 with one objection received. The objection raised issues that the development was not consistent with the objectives and zoning of the site, would have a detrimental effect on property prices, and that the reduced side setbacks proposed would have adverse amenity impacts and result in future development on neighbouring residential sites requiring additional setbacks thus limiting development potential. Concern was also express with the proposed building height and flat roof considered inconsistent with development in the area. 2. The application was refused by Council in July 2016 for the following reasons: 1. The proposed development does not meet the minimum lot size and width at the front building line as required under clause 4.1B(2)(b) of the LEP. 2. The development did not meet various requirements of the Apartment Design Guide (ADG) in terms of: communal open space; deep soil landscaping; solar and daylight access; apartment mix, size and layout; private open space and balcony provision; or storage requirements. 3. The development did not meet various requirements of the Bankstown Development Control Plan (the DCP) in terms of: primary frontage setback, secondary frontage setback, side setbacks, driveway side setbacks, landscaping, waste storage areas, or required parking. 4. Given the design non-compliances, the development would likely have adverse social impacts on the locality, was not considered a suitable form of development for the site, and was not in the public interest. 1. The application was amended prior to the hearing but these amendments only addressed Council concerns in terms of apartment size, layout and mix, storage provision, the car park, and waste storage and collection. All of the other contentions remained 2. The hearing commenced on site where the Court undertook a view and heard from an architect, Mr Issa, on behalf of the owner of 3 Cambridge Avenue. The concerns of this owner related to the amenity impacts of the development in terms of overshadowing and privacy, the size and setbacks of the development, the proposed landscaping, and with the development proceeding in isolation of adjacent development. 3. Mr Issa had also prepared written objections on behalf the owner of 3 Cambridge Avenue in response to the application. In addition to raising concerns with the design of the proposal, the objection advised that no attempt was made before lodging the appeal to negotiate the purchase of 3 Cambridge Avenue. It also notes that 5 Cambridge Avenue was sold six month earlier giving the applicant the opportunity to purchase this property as part of a future amalgamation. Further, that the offer made to the owner of 3 Cambridge Avenue, although stated to be a premium to the valuation, was well below market value when considering the recent price of 5 Cambridge Avenue, with 3 Cambridge Avenue being a larger lot with a more substantial residence. The Issues Site area and width 1. Clause 4.1B of the LEP specifies minimum lot sizes and widths for certain classes of development. The following are relevant parts of the clause: 4.1B Minimum lot sizes and special provisions for certain dwellings (1) The objectives of this clause are as follows: (a) to ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas, (b) ... (c) to ensure that lots for non-residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, play areas, pedestrian access, set down and pick up areas, car parks, driveways and vehicle manoeuvring areas, (d) to minimise any likely adverse impact of the development on the amenity of the area, (e) where an existing lot is inadequate in terms of its area or width—to require the consolidation of 2 or more lots. (2) Despite any other provision of this Plan, development consent must not be granted to development on a lot in a zone shown in Column 2 of the table to this clause for a purpose shown in Column 1 of the table opposite that zone unless: (a) the area of the lot is equal to or greater than the area specified for that purpose and shown in Column 3 of the table, and (b) the width of the lot at the front building line is equal to or greater than the width specified for that purpose and shown opposite in Column 4 of the table. Column 1 Column 2 Column 3 Column 4 Shop top housing Zone R4 High Density Residential 1,500 square metres 30 metres 1. The site has an area of 490.6m² and a width at the front building line of 12.19m, which are significantly less than the minimum requirements for site area and width under cl 4.1B. A written request under clause 4.6 of the LEP had been lodged with the application accordingly seeking to justify the variation to both standards. 2. The relevant provisions of Clause 4.6 are as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) 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. (3) 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: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) 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 (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. 1. The objectives of the R4 zone are as follows: * To provide for the housing needs of the community within a high density residential environment. * To provide a variety of housing types within a high density residential environment. * To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The Council argued that development consent should not be granted because the Court would not be satisfied that the cl 4.6 request had adequately addressed the matters required under the clause and that the development would not be in the public interest as it did not meet the objectives of the standards. 2. Specifically, the Council argued that the non-compliances with the ADG and DCP design requirements demonstrated that the site was of insufficient size and width to accommodate the proposed development. In particular, the development did not comply with setbacks to adjoining residential land, building separation, visual privacy, solar access, or in terms of adequacy of the communal open space, landscaping and deep soil zones proposed. 3. The Council therefore concluded that the development was an overdevelopment of the site which was not suitable for the type of development proposed. If approved, the application would set a precedent for similar inappropriate development of all adjoining lots within Cambridge Avenue which were of a similar size and development potential. 4. The Council argued that the LEP specifically required amalgamation of such lots prior to development and, if approved, the development would result in applications for several substandard small shop top housing developments with the same issues as applied to this application. 5. In this regard, there are six other allotments on the same side (being the northern side), of Cambridge Avenue between Northam Avenue and Chapel Road which are of a similar zoning, size and width each containing single dwellings. These lots similarly require amalgamation in order to comply with the provisions of cl 4.1B before a high density form of development, including shop top housing, could proceed. 6. The applicant argued that attempts had been made to amalgamate with the adjoining residential property at 3 Cambridge Avenue but that the owner of that property would not accept an above market offer to sell the site. Furthermore, the site was not similar to other sites on the northern side of Cambridge Avenue because it was adjoined on two boundaries by non-residential uses in a non-residential zone, creating a unique circumstance warranting approval. 7. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Preston CJ outlines that, where LEP standards are not met, consent can not be granted unless the Court is satisfied that the proposed development will be consistent with the objectives of the zone and with the objectives of the standard/s in question, has considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and is satisfied that the matters required to be demonstrated have been adequately addressed. 8. The clause 4.6 variation request lodged by the applicant put the following arguments in support of varying the lot area and width standards in the LEP: a. Negotiations with the owners of 3 and 5 Cambridge Avenue were undertaken but these adjoining properties could not be obtained. Therefore the site is an isolated parcel of land adjoining the Mixed Use zone and a degree of flexibility available under cl 4.6 should be applied to allow for development in accordance with the high density zoning. b. Compliance with the standard is unreasonable or unnecessary as the development achieves a suitable built form compliant with the height and FSR standards in the LEP. Adequate open space and parking is provided and the proposed residential units achieve good residential amenity in terms of cross ventilation and solar access. Furthermore, the development form is suitable for an infill site adjoining a Mixed Use zone. c. The development meets the objectives of the standard in that there are suitable setbacks and separation to 3 Cambridge Avenue with privacy screening to mitigate potential overlooking and no unreasonable overshadowing, with this property retaining more than three hours of solar access at mid-winter. d. The development will not restrict future development to the west in Cambridge Avenue. e. In terms of the development being in the public interest, the site adjoins a Mixed Use zone where amalgamation with adjoining residential properties could not be achieved to allow a consolidated development site to meet the required standards. Nevertheless the development is an orderly and economic use of the land accommodating shop top housing. The proposed form and scale are consistent with the planning controls for high density zones and the development provides additional housing within the catchment of the Bankstown CBD. f. The variations sought do not affect the planning outcomes for the broader locality and achieve an acceptable development outcome for the site with the development itself having adequate residential amenity. g. The above reasons constitute sufficient environmental planning grounds to justify contravening the development standard/s. 1. Mr Seton for the Council argued that the test under cl 4.6 was not achieved as it couldn't be argued that a better outcome from development would result from not meeting the site area and width standards. He also argued that the objectives of the standards were not met particularly objectives a), d) and e). 2. In terms of the design of the development, the Council's main concerns were with the various non-compliances with design requirements and the impacts to 3 Cambridge Avenue. Reference was made to Part B1 – Residential Development of the DCP and in particular the following objectives in terms of the desired future character of the residential zones: (c) To have a high density residential environment in Zone R4 that provides high density housing in the form of contemporary designed residential flat buildings within a landscaped setting. Development should provide appropriate spaces between buildings, communal open spaces and deep soil zones to provide adequate amenity for residents. (e) To have development that achieves good urban design in terms of building form, bulk, architectural treatment and visual amenity. (f) To have development that provides adequate amenity to people who live in, work in and visit the local area. 1. The DCP objectives for residential development including RFBs and shop top housing include: 1. To ensure the building form, building design and landscaping of residential flat buildings, serviced apartments and shop top housing are compatible with the suburban character of the high density residential areas. 2. To ensure the building form and building design of residential flat buildings, serviced apartments and shop top housing provide appropriate amenity to residents in terms of access to sunlight and privacy. 3. To ensure the building form and building design of residential flat buildings, serviced apartments and shop top housing do not adversely impact on the amenity of neighbouring properties in terms of visual bulk, access to sunlight and privacy. 1. The Council also referenced the site isolation provisions at clause 9.1 of section 9 of the DCP arguing that the site was not isolated having regard to this definition which states: The consent authority must not going consent to any development on land within Zone R4 High Density Residential if the proposed development will have the effect of isolating land with an area of less than 1200m² and a width of less than 20m at the front building line so as to preclude the reasonable development of that land. 1. Mr Hodgkinson, planner for the Council, argued that the site was not isolated. It is one of seven residentially zoned adjoining lots with all the other lots of similar small size and width containing dwelling houses. This form of development is below the density sought for the land by the zoning which is why the LEP encourages their amalgamation for higher density development. For the site to be isolated, 3 Cambridge Avenue would need to be developed to such an extent that any future redevelopment as part of an amalgamated site would be unfeasible and this was not the case. 2. Mr Hodgkinson considered the site too small and too narrow for the development proposed resulting in a compromised design with non-compliant setbacks, limited solar access to living areas and balconies of the proposed units, and a deficiency in communal open space and in the landscaped area within the front setback. It was for this reason that the LEP contained controls requiring a certain minimum lot area and width for higher density residential development. 3. Mr Chapman, planner for the applicant, argued that the site was relatively unique being zoned R4 but adjoining a B4 Mixed Use zone and the blank walls of a commercial building to one side. If the development did not proceed, he argued, the land would be sterilised as the applicant had approached the adjoining residential neighbour unsuccessfully to secure their property to create a larger site. The offer was above a valuation undertaken for the land. 4. In evidence, Mr Chapman argued sterilisation in that the height, FSR and higher density of development envisaged within the R4 zone couldn't be achieved. The Council argued that this was the intent in requiring amalgamation so that higher density development could only be achieved where there were larger sites to enable appropriate built form outcomes. 5. Mr Chapman argued that a circumstance warranting the variation, in addition to the inability to amalgamate to create a larger site and the blank wall of the commercial development to the east, was the ability for this site to provide a transition development between commercial development on the corner and future higher density residential development to the west. 6. The Council argued that transition was already provided for in the height and FSR controls but this did not mean that setbacks should also be reduced. 7. The Council noted that the DCP required a setback for a building wall to the primary frontage of 6m but only a minimum of 3.8m was proposed and the setback to the secondary frontage (the laneway) was not met. The setbacks to the side and rear boundary were also not met with nil setbacks proposed to these boundaries. 8. Mr Chapman noted there were a variety of front setbacks less than 6m ranging from 3.8m to 4.6m in the street and the development would be in keeping with these. He accepted that the minimum required DCP setback to the side (western) boundary was not achieved although he argued that no amenity impacts arose. The Council argued however, that this would restrict the development potential of 3 Cambridge Avenue in terms of the required building separation if the proposed setback eventuated. 9. Mr Hodgkinson did accept that solar access and privacy impacts to 3 Cambridge Avenue could be addressed with conditions that had been agreed in joint conferral of the experts. However, concerns remained with the non-compliance with setbacks, communal open space and landscaping provision. 10. There was disagreement between the parties in terms of the interpretation of the front area landscaping provision of the DCP. At clause 9.33 of Part B1, the DCP requires a minimum 45% of the area between the building and the primary frontage to be landscaped. Mr Seton advised this was on the assumed provision of a 6m setback to the primary frontage not 45% of whatever setback was proposed, which was the argument put by Ms Duggan, counsel for the applicant. The applicant argued that, in any event, minor modifications to the application could achieve the landscaped area sought by the Council and some consideration should be given to the fact that the ground floor use was retail, requiring visibility and access, not residential. 11. There was also disagreement as to the adequacy of the communal open space provision which the ADG requires as 25% of the site area with only 16% provided. The Council considered this was insufficient but the applicant argued that the onsite deficit was offset by the close proximity of CBD services and the Bankstown City Gardens Memorial Park. 12. In terms of solar access, there was disagreement as to whether all of the units and/or their balconies would achieve a minimum of 2 hours of solar access in mid-winter. Mr Chapman conceded that at least two units did not strictly achieve the minimum ADG requirement when considering whether the quantum of sunlight received would be adequate. The applicant indicated however, that skylights were proposed to supplement solar access and that minor design changes could be undertaken or conditioned to improve solar access provision. Findings 1. The application relies on the adequacy of the clause 4.6 variation request to justify contravention of the minimum site area and width standards in the LEP before consent could be granted on the basis of the merits of the application. 2. For the reasons that follow, I do not consider that the clause 4.6 variation request adequately demonstrates that compliance with the standards is unreasonable or unnecessary in the circumstances or that there are sufficient environmental planning grounds to justify the contravention. Therefore the application must be refused and the appeal dismissed. 3. The application seeks essentially to abandon the two key LEP standards required as conditions precedent to the form of higher density development proposed for the site, namely that the site has a certain minimum area and width. Where either or both of these standards cannot be met, the site is required to be amalgamated in order to achieve the form of development sought. 4. The LEP therefore provides the opportunity to achieve certain forms of development on a small lot if that lot is able to amalgamate with adjoining lots. If it is unable to amalgamate then any entitlement to those forms of development does not exist notwithstanding the zoning. 5. The primary basis for the applicant's argument to vary the standards is that amalgamation can't occur as the adjoining owner will not sell at the price offered by the applicant (albeit amalgamation with more than this property would be required in any event to meet the LEP requirements for shop top housing development in the R4 zone). Therefore, the applicant argues, the standards should in effect be set aside and have no role to play. I don't accept that this is the case or that an unsuccessful attempt to buy an adjoining property at a defined value is an environmental planning ground warranting the flexible application of the standards. 6. Furthermore, such action would not constitute flexible application of the standards, it would ignore them when the standards are read in conjunction with how they are to be achieved for small lots as a condition precedent to development, namely by amalgamation. 7. The area and width of the site are both substantially less than the LEP standards require so the variation sought is not minor, ie the contravention sought is significant. 8. If the cl 4.6 request was to be upheld and development approved primarily on the basis of a neighbour's unwillingness to sell, clause 4.1B of the LEP would have no work to do and there would be little basis for precluding the owners of other small underwidth lots to seek a similar form of development as the core LEP standards would have essentially been set aside. The requirement for owners to have to amalgamate to achieve higher development potential would have been ignored despite being a stated LEP objective. 9. Clearly the intent of clause 4.1B is that, only if adjoining owners work together to achieve amalgamation, can any single owner benefit from a higher development yield as individually their properties are of insufficient size or width to facilitate the form of high density development desired by the Council and which meets all of the design controls of the DCP and ADG. 10. I now turn to the other arguments advanced in the clause 4.6 request. 11. Firstly I disagree that the site is isolated. This is not the case given there remains opportunity to create the site area and width required through amalgamation with neighbours, albeit the cost and timing of that amalgamation may not align with the applicant's intent. 12. Secondly, the fact that the proposed development may not restrict redevelopment of adjoining residential properties to the west is not a reason to vary the standards. It is also the fact that, if the development were approved as proposed, it would reduce the opportunity for No's 3, 5 and 7 Cambridge Avenue to amalgamate with the site in order to meet the requirements of the LEP. It would particularly impact on No. 3 by not only imposing design constraints adjacent to the proposed development but by restricting that site from the opportunity of amalgamating with two rather than only one neighbour. 13. Thirdly, I do not agree that varying the standards would achieve better outcomes for and from development as cl 4.6 requires. The small site area and width clearly confines the design of the development leading to non-compliances with a range of controls, irrespective of the quantum, whereas a premise of seeking a variation to standards is generally that all such controls are nevertheless achieved. This is whilst the development seeks to benefit from nil setbacks to adjacent non-residential uses. 14. The existence of the Mixed Use zone and non-residential development to the northern and eastern boundaries do provide a planning ground for consideration of some flexibility in how the standards might be applied. However, these factors alone do not provide sufficient environmental planning grounds to warrant the extent of variation sought or to set aside the LEP requirement for amalgamation to be required in order to achieve the density of development sought. 15. There was no dispute that the development met the objectives of the zone however, it fails to meet all of the objectives of the standards sought to be varied. It does not ensure that the lot is of a sufficient size to accommodate the proposed dwellings, setbacks to adjoining residential land and landscaped areas required. 16. Nor can it be said to minimise any likely adverse impact of the development on the amenity of the area. To the contrary, as I have already indicated, it would reduce the ability of 3 Cambridge Avenue to amalgamate with its neighbours, require any development to the west to achieve separation distances and designs adversely impacted by the proximity of the proposed development, and create a precedent suggesting that the minimum site area, site width and amalgamation provisions of the LEP do not need to be met for higher density development to occur. 17. This outcome would be against the objectives of the standard with the likely result being developments of compromised design on underwidth and undersized lots which is clearly what cl 4.1B is seeking to avoid. 18. Finally, it is the case that the last objective of the standards can not be met, namely that, where an existing lot is inadequate in terms of its area or width, to require the consolidation of 2 or more lots as a condition precedent to shop top housing occurring. 19. As the case for application of flexibility to vary the LEP standards under cl 4.6 is not met, the application can not be approved. It is therefore not necessary for me to address the disputed areas of non-compliance with setbacks, solar access, communal open space or provision of landscaped area. 20. The evidence suggests that these non-compliances arise in any event from the constraints imposed in seeking to develop a site substantially smaller and narrower than the standards require. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development application DA-381/2016 for shop top housing at 1 Cambridge Avenue, Bankstown is refused. 3. The exhibits, other than Exhibits A, B and 1, are returned. __________________ Jenny Smithson Commissioner 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: 04 May 2018