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An accredited certifier can run into huge legal difficulties by issuing a Complying Development Certificate ("CDC") for development that does not qualify as "complying" within the meaning of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP). In circumstances where a CDC is not properly issued, it can be challenged by a council in the Land and Environment Court. If a finding is made that the CDC is invalid, the certifier can be ordered to pay the council's legal costs (which can be a very expensive proposition, especially when weighed against the relatively small fees that would ordinarily be charged by a certifier for issuing the CDC).
Exactly this "nightmare scenario" unfolded in a case that was decided by Justice Craig on 20 October 2014, Hornsby Shire Council v Trives (2014) NSWLEC 171. In that case, the Council challenged CDCs that were issued in relation to three separate properties in the Council's local government area, all by the same certifier.
The circumstances with respect to each of the properties involved in this case were very similar. All of the sites were located in parts of the council that were designated as "R2 Low Density Residential" under the council's Local Environmental Plan. All of the properties contained existing dwelling houses. All of the CDCs issued by the certifier authorised new buildings that were identified as "detached studios". And all of the floor plans for the so-called "detached studios" provided for the construction of buildings much larger than what might conventionally be considered to be a "studio", each with several bedrooms, a bathroom, a living and dining area, and a kitchen (albeit ones with "hot plates" instead of ovens and stove tops). Very tellingly concerning the actual nature of the buildings authorised by the CDCs was that each was described in the BASIX certificate (stamped and signed by the certifier) as a "separate dwelling house".
Interestingly, the SEPP does not describe the number of bedrooms, or the nature of the other accommodation, that may be provided in a "detached studio". The only guidance that the SEPP provides about the type of structure that can qualify as a "detached studio" is that it must be ancillary development that is habitable and is:established in conjunction with a dwelling house; on the same lot of land as the dwelling house, and separate from the dwelling house.
Justice Craig determined that there were three "fatal flaws" that doomed the CDCs.
First, he found that the proposed buildings were not in fact "ancillary" to the existing dwelling houses, in the sense of being "subservient" forms of development, but were instead themselves most fairly characterised as separate dwelling houses (and thus not eligible for approval through a CDC as "detached studios").
Secondly, Justice Craig concluded that the proposed buildings could not qualify as "complying development" under the SEPP because clause 1.18 of the SEPP provides that development can only be "complying" if it is permissible under the provisions of a local environmental plan. In this case, because Justice Craig had found that the proposed new buildings were most accurately characterised as separate dwellings, he held that the form of development proposed by the CDCs was for either "dual occupancies" or "secondary dwellings". As both of these forms of development are prohibited in Hornsby Council's R2 Low Density Residential Zone, the proposed new buildings could not be lawfully approved as "complying development".
Thirdly, Justice Craig ruled that the CDCs had run afoul of clause 3.8 of the SEPP (relating to lot requirements), which provides that development is not permissible under the provisions of the SEPP when it results in there being more than one dwelling house on a single lot.
The guidance that can be taken from this case is that certifiers should exercise caution and prudence when considering whether to grant a CDC, and should refrain from doing so in doubtful cases. On the face of the situation, given the size of the proposed new dwellings, the nature of the rooms they were planned to accommodate, and their description in the BASIX certificates as "separate dwelling houses", that it was not well-considered for the certifier to approve those grant CDCs for those structures under the appellation of "detached studios". Doing so proved in the event to be "a recipe for trouble".
For those who wish to peruse the Court's judgement, it can be found at the following link:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=175069
The Land and Environment Court has dismissed an appeal against the refusal of a development application for a new house that would have placed an area containing Blue Gum High Forest at risk of destruction. The case, Johnson v Hornsby Shire Council (2014) NSWLEC 1215 (decided 21 October 2014) is of particular interest because it illustrates how the recently (1 August 2014) enacted Rural Fires Amendment (Vegetation Clearing) Act 2014 (NSW) can influence the determination of planning decisions. The case also demonstrates that if thoughtful, ecologically conscious design choices are made, new development can be carried out in proximity to environmentally sensitive remnant bushland. The Court's decision, handed down by Commissioner O'Neill, can be referenced at the following link:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174853
The background to the case was that the proposed development site, located in the suburb of Beecroft, had been the subject of a previous subdivision approval that had been granted by the council which had required the preservation of Blue Gum High Forest located at the rear of the property. This type of forest is listed as a "critically endangered ecological community" under the NSW Threatened Species Conservation Act 1995 and is thus protected. The subdivision approval included a condition which required that a restriction be placed on the use of the part of the land where the Blue Gum High Forest is situated under the Conveyancing Act to require retention of significant trees and to prohibit building works which could adversely impact on the forest area.
Notwithstanding the restriction that was provided for by the subdivision proposal, the remnant Blue Gum Forest was placed at risk due to the operation of the Rural Fires Amendment Act. The Act provided for the addition of a new section 100R to the Rural Fires Act which allows for the removal of any trees located within 10 meters of an external wall of a house in any area that is designated as a "10/50 vegetation clearing entitlement area" and dispenses with the requirement that approval for such tree removal be obtained under the Environmental Planning and Assessment Act, the Native Vegetation Act, or any other legislative regime. As the property that was the subject of the development proposal is in a "10/50 vegetation clearing entitlement area", the grant of consent would have had the effect of allowing the removal of more than half the remnant Blue Gum High Forest on the property (as trees characteristic of such forest would have been located within 10 metres of the building envelope of the proposed new house.
Commissioner O'Neill concluded that the grant of a development consent that would subject such a large part of the Blue Gum Forest to likely removal was unacceptable. She found that a more "economical layout" of the site than was suggested in the development application would have provided for a greater setback between the proposed new house and the area of remnant Blue Gum Forest, thus keeping the significant trees in the forested area more than 10 metres from the house and protecting them from possible removal under the "10/50" provisions of section 100R of the Rural Fires Act.
The outcome in this case shows that the "10/50" rules can actually be an impediment to a development proposal, and that in circumstances where ecologically significant trees are growing within 10 metres of a planned new house or other residential building, the interest in protection of those trees may outweigh the interest of the proponent of the development application, and can result in the failure of the application.
Consequently, the message to be "taken away" from this case is that following ecologically careful design principles, by providing a sufficient buffer area between proposed new residential buildings and environmentally important trees, is also a conservative approach which will enhance the likelihood that a development application will gain approval.
Addendum 3 November 2014: Coverage of this case has appeared in today's on-line edition of The Daily Telegraph, but Concordia Pacific & The Daily Planet had the scoop first!!!! The link to the Daily Telegraph's story is at http://www.dailytelegraph.com.au/newslocal/news/land-and-environment-court-rejects-da-in-beecroft-out-of-fears-for-blue-gums-under-1050-legislation/story-fngr8gwi-1227108405347
In a decision dated 14 October 2014, Justice Biscoe of the Land and Environment Court has ruled that a development proposal that called for the placement of apartment units on the ground floor level of a building could not properly be characterised as "shop-top" housing. See Blackmore Design Group Pty Limited v Manly Council, (2014) NSWLEC 164. The decision follows a similar holding made by Justice Sheehan in Hrsto v Canterbury City Council (No. 2) (2014) NSWLEC 121, discussed previously in this blog. In that case, Justice Sheehan ruled that in order for a development to be classified as "shop top housing" the apartments must be physically "above" the commercial premises, a concept which of course seems to follow logically from the use of the term "top" in the phrase describing this type of development.
The Blackmore Design case arose from a development application which proposed a building with a retail area and three apartments on the ground floor, with five further levels of apartments above. The site for the proposed development was located in an area designated as "B2 Local Centre" under Manly Council's Local Environmental Plan 2013. Although "shop top" housing is a permissible land use in this zone, "residential flat buildings" are prohibited. Interestingly, the development application did not describe the proposal as one for "shop top housing" but rather as one for a "mixed use development". It is somewhat surprising that the development was so characterised in the application, because under Manly's LEP mixed use developments also appear to be a prohibited in the B2 Local Centre Zone (such developments are not included in the list of permissible uses in the land use table for the zone).
The Council refused the development application in part on the grounds that the proposal was prohibited.
Following an appeal against the refusal, the Council asked the Court to determine, as a "separate question", whether the proposal should properly be characterised as a form of "residential accommodation". Again, surprisingly, the applicant did not contest the Council's assertion that the "separate question" should be answered in the affirmative. In other words, the applicant effectively conceded that the development application was for a prohibited use. Indeed, Justice Biscoe found that the proposal, involving apartment units on the ground floor, could not be considered to be "shop top" housing because, as per the Hrsto decision, the apartments were not planned for a level of the building "higher than the top most part of the ground floor retail or business premises".
The viability of the appeal thus hinged on a "Notice of Motion" brought by the applicant seeking leave to rely on amended architectural plans that called for the replacement of the apartment units on the ground floor level of the building with "commercial units". The Notice of Motion was heard by Justice Biscoe simultaneously with the "separate question" as to whether the proposal was for a form of "residential accommodation". The Council opposed the Notice of Motion on the basis that the amended proposal was in essence a "new" application (and thus one that the Court did not have jurisdiction to determine). However, Justice Biscoe concluded that the application remained one for a "mixed used" development. Further, although the Council contended that a "mixed use" development was prohibited in the zone, Justice Biscoe disagreed. His Honour's reasoning was that since the amended proposal called for two types of development that were permissible in the zone, commercial premises and shop top housing, that use was itself permissible even though a species of mixed use development.
The essential lesson to be taken from this case is that applicants who are seeking to ensure that developments that would otherwise be prohibited as "residential accommodation" can proceed as "shop top housing" must design the proposal so that the residential components are genuinely "above" the commercial or business elements of the building.
It is also our observation that the applicant adopted a risky course in this case by characterising the proposal in its application to the Council as one for "mixed use development". There was in our view a very significant prospect that the Court could have agreed with the Council that such a development was prohibited in the zone. Of course, had the Court reached that conclusion, the appeal would have been a lost cause. We suggest that the safer and more cautious approach would have been for the applicant to define the proposal as a "shop top" development, a clearly permissible use, in the first instance in its development application. It would also have been a more conservative approach (and one less likely to have encountered opposition from the Council) if the application had not proposed apartment units for the ground floor and had confined that level of the building to commercial uses (it appears, based on the Court's account of the contents of the Statement of Environmental Effects, that the applicant did not do so due to concerns that using the space originally designated for apartments for commercial units would not be economically viable).
The Court's judgement can be read at the following link:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174673.
The greatest obstacle to development proposals that are made under the State Environmental Planning Policy (Affordable Rental Housing) 2009 is to get over the hurdle of showing that the design of the proposal is compatible with the character of the surrounding locality. Under the SEPP, unless the consent authority (whether it be a local council in the first instance or the Land and Environment Court on appeal following refusal of a development application) is satisfied that the compatibility test is met, the proposal cannot win approval. So it proved to be the case in a recent case in the Land and Environment Court,
Amine, Mouhamad & Anor v Bankstown City Council, (2014) NSWLEC 1188 (10 September 2014), where the Commissioners finding that the proposal would not be compatible sealed its fate.
The development proposal at issue in the case sought approval for the demolition of a dilapidated cottage and associated garage, and the construction of three new "villas" as infill affordable housing. The proposal was situated in an area where the existing built form was comprised of attached, two-storey dwellings, along with a mix of detached dwellings, dual occupancies and other villa developments. The applicant's planning expert therefore gave evidence that the proposal would be "compatible" because it was, in his view, consistent with the low and medium density character of the area.
Unfortunately for the applicant, issues relating to the design of the development caused the Commissioner who presided over the case, Commissioner O"Neill, to conclude that it was incompatible with the character of the local area. The plans for the proposal specified that one of the villas would have a high, long and steeply pitched gabled roof running along the side boundary of the site, and another of the villas would have a similarly high, long and steeply pitched gabled roof running along the rear boundary. The Commissioner found that this design would result in the villas being "read" from the rear yards of the adjoining properties as large, bulky, two-storey dwellings. In the Commissioner's view, this built form was not compatible with the locality, which she considered to be characterised by buildings with two-storey development confined to the front and with single storey development predominantly to the rear of the allotments.
The Commissioner was also critical of the overall design of the proposal. She found that the proposed building envelopes were significantly greater than was necessary to accommodate the internal floor space, resulting in what she described as "vast areas of wasted space, inefficient and poor circulation, awkward room layouts and poor connectivity". The Commissioner observed that a better design approach would have resulted in buildings that would have accommodated the same amount of internal living space but that would have been lower and less bulky, and thus more likely to be compatible with the built form of the surrounding area.
The outcome of this case therefore contains useful lessons for proponents of development projects under the Affordable Rental Housing SEPP. First, the exercise of evaluating whether a proposal is "compatible" with the character of the area must go further beyond an enquiry concerning "density" and must examine the actual built form. If the proposal departs too greatly from the built form (including with respect to issues such as the preservation of visual amenity from the rear yards of adjoining properties), it will court rejection. Furthermore, scrupulous attention should be paid to design issues to ensure that the bulk and scale of proposed buildings are not unnecessarily large and that the buildings will fit comfortably within the context of the locality.
The Court's decision can be found here: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174016
