Agenda of Randwick Local Planning Panel

Randwick Local Planning Panel16 August 2019

Development Application Report No. D43/19

Subject: 1B Yarra Road, Phillip Bay (DA/788/2018)

Proposal: Torrens title subdivision of an existing dual occupancy

Ward: South Ward

Applicant: Harrison Friedmann & Associates Pty Ltd

Owner: 1B Yarra Road Pty Ltd

Cost of works: nil

Reason for referral: Variation to Clause 4.1D of RLEP 2012 exceeds 10%

Recommendation

A. That the RLPP is satisfied that the matters detailed in clause 4.6(4) of Randwick Local Environmental Plan 2012 have been adequately addressed and that consent may be granted to the development application, which contravenes the minimum subdivision lot size and lot width development standard in Clause 4.1D of Randwick Local Environmental Plan 2012. The concurrence of the Secretary of Planning, Industry and Environment may be assumed.

B. That the RLPP grant consent under Sections 4.16 and 4.17 of the Environmental Planning and Assessment Act 1979, as amended, to Development Application No. 788/2018 for Torrens title subdivision of an existing dual occupancy at No. 1B Yarra Road, Phillip Bay subject to the development consent conditions attached to this report.



	Subject Site

	Submissions received Ù North
	Locality Plan

1. Executive summary

On the 11 July 2019, the Randwick Local Planning Panel (“RLPP”) resolved to defer determination of DA/788/2018 to allow an amended written request pursuant to Clause 4.6 of the Randwick Local Environmental Plan 2012 (“Randwick LEP”) to be submitted by 11 August 2019. The Applicant sought an extension to make the submission until 14 August 2019 to which the RLPP agreed. Subsequently, the amended written request was submitted 14 August 2019.

The original application was referred to the RLPP as the development contravenes the development standard for minimum subdivision lot size and lot width by more than 10%. The original RLPP report is attached to this report.

The proposal seeks development consent for the Torrens Title subdivision of an existing dual occupancy into 2 allotments with proposed lot 131 being 219m²with 7.9m lot width at the building line, and proposed lot 132 being 189m²with 4.4m lot width at the building line.

2. Resolution

On the 11 July 2019, the RLPP resolved:

RESOLUTION:

A. That the Randwick Local Planning Panel defers determination of the Development Application and invites the Applicant to submit an amended Clause 4.6 submission adequately demonstrating that: compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and that there are sufficient environmental planning grounds to justify contravening the development standard.

The amended Clause 4.6 submission should:

· Correctly identify the minimum lot size referred to in Clause 4.1D of the Randwick Local Environmental Plan 2012 which references Clause 6.4(1)(d)(ii) in the SEPP Exempt and Complying Development; and

· Addresses the purpose of Clause 4.1D of the RLEP.

The above information must be submitted to the Council by 11 August 2019 otherwise the application may be determined on the information currently provided. Following receipt of this information, the Panel will determine the application electronically.

REASON:

The Panel has visited the site, considered the Clause 4.6 application and reviewed the assessment report prepared by Council officers that addresses the relevant matters detailed in Section 4.15 of the Environmental Planning and Assessment Act 1979, as amended.

The Panel has deferred determination of the application as it is not satisfied that the development application as proposed adequately addresses the requirements of a Clause 4.6 of RLEP 2012.

CARRIED Unanimously.

The Applicant has submitted a revised written request pursuant to Clause 4.6 of the RLEP, which is provided in Appendix 1. The written request correctly references the minimum lot size as specified in the SEPP Exempt and Complying Development (200m²) and addresses the purpose of Clause 4.1D of the RLEP. The revised written request states the purpose of the clause is to permit subdivision of attached dual occupancies on land zoned R2 Low Density Residential that were approved prior to 6 July 2018, and in this regard the proposal is consistent with the broad purpose of Clause 4.1D.

3. Clause 4.6 exception to a development standard

The proposal seeks to vary the following development standard contained within the Randwick Local Environmental Plan 2012 (RLEP 2012):

Clause

Development Standard

Proposal

Proposed variation

(%)

Cl 4.1D:

Lot Size and lot width (min)

200m²and

6m at the building line.

Lot 131 = 219m²with 7.9m lot width.

Lot 132 = 189m² with 4.4m lot width.

Lot 132 does not comply, with 11m² variation to lot size and 1.6m variation to lot width.

5.5% lot size and 26.6% lot width.

Clause 4.6 of RLEP 2012: Exception to a Development Standard relevantly states:

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.

In Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, Preston CJ summarised the matters in Clause 4.6 (4) that must be addressed before consent can be granted to a development that contravenes a development standard.

1. The applicant’s written request has adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case

Chief Justice Preston in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 reinforces his previous decision In Wehbe v Pittwater Council [2007] NSWLEC 827 (“Wehbe”) where he identified five commonly invoked ways of establishing that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case. The most common is to demonstrate that the objectives of the development standard are achieved notwithstanding non-compliance with the standard. However, the Applicant seeks to demonstrate that compliance is unreasonable or unnecessary based upon the second method, being that the underlining objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary.

2. The applicant’s written request has adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard.

Chief Justice Preston in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 reinforces the previous decision in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 regarding how to determine whether ‘the applicant’s written request has adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard’.

The grounds relied on by the applicant in their written request must be “environmental planning grounds” by their nature. Chief Justice Preston at [23] notes the adjectival phrase “environmental planning” is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s1.3 of the EPA Act.

Chief Justice Preston at [24] notes that there here are two respects in which the written request needs to be “sufficient”.

1. The written request must focus on the aspect or element of the development that contravenes the development standard, not the development as a whole (i.e. The written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole); and

2. The written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard. In Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31] Judge Pain confirmed that the term ‘sufficient’ did not suggest a low bar, rather on the contrary, the written report must address sufficient environmental planning grounds to satisfy the consent authority.

3. 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.

Chief Justice Preston in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [27] notes that the matter in cl 4.6(4)(a)(ii), with which the consent authority must be satisfied, is not merely that the proposed development will be in the public interest but that it will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out.

It is the proposed development’s consistency with the objectives of the development standard and the objectives of the zone that make the proposed development in the public interest.

If the proposed development is inconsistent with either the objectives of the development standard or the objectives of the zone or both, the consent authority, cannot be satisfied that the development will be in the public interest for the purposes of cl 4.6(4)(a)(ii).

4. The concurrence of the Secretary has been obtained.

Chief Justice Preston in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [28] notes that the other precondition in cl 4.6(4) that must be satisfied before consent can be granted is whether the concurrence of the Secretary has been obtained (cl 4.6(4)(b)). In accordance with Clause 4.6 (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

Under clause 64 of the Environmental Planning and Assessment Regulation 2000, the Secretary has given written notice dated 21 February 2018, attached to the Planning Circular PS 18-003 issued on 21 February 2018, to each consent authority, that it may assume the Secretary’s concurrence for exceptions to development standards in respect of applications made under cl 4.6 (subject to the conditions in the table in the notice).

The approach to determining a clause 4.6 request as summarised by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, has been used in the following assessment of whether the matters in Clause 4.6(4) have been satisfied for each contravention of a development standard.

3.1. Exception to the subdivision of dual occupancies (attached) in Zone R2 development standard (Cl 4.1D)

The Applicant’s written justification for the departure from the subdivision of attached dual occupancies development standard is contained in Appendix 1.

1. Has the applicant’s written request adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case?

The Applicant’s written request seeks to justify the contravention of the subdivision of attached dual occupancies development standard in two ways. The first is by demonstrating that compliance is unreasonable or unnecessary in the circumstances of the case because the objectives of the development standard are achieved notwithstanding non-compliance with the standard (which is one of the 5 ways established by Wehbe). In summary, the Applicant’s written request states there will be no impact on the amenity of neighbouring properties or on existing natural and cultural features given the dual occupancy is existing and no works are proposed, and the lots are suitable for their purpose as they will accommodate a lawfully approved, existing dual occupancy.

The second way is demonstrating the proposal is consistent with the Randwick City Council Subdivision Code. The Applicant acknowledges this method is not one of the 5 ways established by Wehbe, however Wehbe recognised that the 5 ways were not exhaustive. In summary, the Applicant’s written request states that because the dual occupancy was approved in 1990 the Randwick City Council Subdivision Code is applicable and Torrens title subdivision would have been allowed at the time the code was introduced.

The Applicant’s written request has adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

2. Has the applicant’s written request adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard?

The Applicant’s written request seeks to demonstrate that there are sufficient environmental planning grounds to justify contravening the subdivision of attached dual occupancies development standard on the basis that the non-compliant lot size and lot width will not result in residential amenity impacts given the site already contains a lawfully approved, existing dual occupancy, and the non-compliance will not result in discernable changes to the character of the site. Further, the proposed lot geometry is a function of the design of the existing building, which is a particular circumstance to the site. Finally, the subdivision promotes the orderly and economic use and development of land given it reflects the existing patters of development and is consistent with this specific objective of the Environmental Planning and Assessment Act.

The Applicant’s written request has adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard.

3. Will the proposed development 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?

To determine whether the proposal will be in the public interest, an assessment against the objectives of the minimum subdivision lot size standard and R2 Low Density Residential zone is provided below:

Assessment against objectives of the minimum subdivision lot size standard

(a) to minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties,

Assessing officer’s comment: The subdivision will not result in any likely adverse impact on the amenity of neighbouring properties. Any future development of the lots will be subject to a separate assessment.

(b) to ensure that lot sizes allow development to be sited to protect natural or cultural features, including heritage items, and to retain special features such as trees and views,

Assessing officer’s comment: The subdivision relates to an existing dual occupancy and no works are proposed. Any future development of the lots will be subject to a separate assessment.

(c) to ensure that lot sizes are able to accommodate development that is suitable for its purpose.

Assessing officer’s comment: The subdivision relates to an existing dual occupancy and no works are proposed. The lots are suitably sized to accommodate the existing development. Any future development of the lots will be subject to a separate assessment.

The development is consistent with the objectives of the minimum subdivision lot size standard.

Assessment against objectives of the R2 Low Density Residential zone

The objectives of R2 Low Density Residential zone are:

· To provide for the housing needs of the community within a low density residential environment.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

· To protect the amenity of residents.

· To encourage housing affordability.

· To enable small-scale business uses in existing commercial buildings.

Assessing officer’s comment: The proposal is consistent with the specific objectives of the zone in that the proposed subdivision will provide for the housing needs of the community, contribute to the desired future character of the area (in that it will not change the existing character of the site), and will encourage housing affordability.

The development is consistent with the objectives of the minimum subdivision lot size standard and the R2 Low Density Residential zone. Therefore the development will be in the public interest.

4. Has the concurrence of the Secretary been obtained?

In assuming the concurrence of the Secretary of the Department of Planning and Environment the matters in Clause 4.6(5) have been considered:

Does contravention of the development standard raise any matter of significance for state or regional environmental planning?

The proposed development and variation from the development standard does not raise any matters of significance for state or regional environmental planning.

Is there public benefit from maintaining the development standard?

Variation of the minimum subdivision lot size standard will allow for the orderly use of the site and there is a no public benefit in maintaining the development standard in this instance.

Conclusion

On the basis of the above assessment, it is considered that the requirements of Clause 4.6(4) have been satisfied and that development consent may be granted for development that contravenes the minimum subdivision lot size development standard.

4. Conclusion

That the application for Torrens title subdivision of an existing dual occupancy be approved (subject to conditions) for the following reasons:

· The proposal is consistent with the relevant objectives contained within the RLEP 2012 and the relevant requirements of the RDCP 2013

· The proposal is consistent with the specific objectives of the R2 Low Density Residential zone in that the proposed subdivision will provide for the housing needs of the community, contribute to the desired future character of the area, and will encourage housing affordability.

Appendix 1: Applicant’s revised written request seeking to justify the contravention of the development standard

Attachment/s:

1.⇩	RLPP Conditions - DA/788/2018
2.⇩	1B Yarra Road, Phillip Bay (DA788/2018) Original Report

Responsible officer: William Jones

File Reference: DA/788/2018

RLPP Conditions - DA/788/2018

Attachment 1

Development Consent Conditions

GENERAL CONDITIONS

The development must be carried out in accordance with the following conditions of consent.

These conditions have been applied to satisfy the relevant requirements of the Environmental Planning & Assessment Act 1979, Environmental Planning & Assessment Regulation 2000 and to provide reasonable levels of environmental amenity.

Approved Plans & Supporting Documentation

1. The development must be implemented substantially in accordance with the plans and supporting documentation listed below and endorsed with Council’s approved stamp, except where amended by Council in red and/ or by other conditions of this consent:

*Sheet No.*	*Drawn by*	*Dated*
Ref: 62997RH – Sheet 1 of 1	Surveyed/ drawn RH/PW	31 October 2018

REQUIREMENTS PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE

The following conditions of consent must be complied with prior to the ‘Principal Certifying Authority’ issuing a ‘Subdivision certificate’.

These conditions have been applied to satisfy the provisions of Council’s environmental plans, policies and codes for subdivision works.

Sydney Water

2. A compliance certificate must be obtained from Sydney Water, under Section 73 of the Sydney Water Act 1994. Sydney Water’s assessment will determine the availability of water and sewer services, which may require extension, adjustment or connection to their mains, and if required will issue a Notice of Requirements letter detailing all requirements that must be met. Applications can be made either directly to Sydney Water or through a Sydney Water accredited Water Servicing Coordinator (WSC).

Go to sydneywater.com.au/section73 or call 1300 082 746 to learn more about applying through an authorised WSC or Sydney Water.

A Section 73 Compliance Certificate must be completed before a subdivision certificate will be issued.

Easements

3. The applicant shall create suitable rights of carriageway, easements for services, support and stormwater lines, as required. The applicant shall be advised that the minimum easement width for any stormwater line is 0.9 metres.

Public Utilities

4. The applicant must meet the full cost for telecommunication companies, Jemena, Ausgrid and Sydney Water to adjust/relocate their services as required. This may include (but not necessarily be limited to) relocating/installing new service lines and providing new meters. The applicant must make the necessary arrangements with the service authorities.

Should compliance with this condition require works that are not exempt development, the necessary approvals must be obtained prior to any works being undertaken.

Road / Asset Opening Permit

5. A Road / Asset Opening Permit must be obtained from Council prior to carrying out any works within or upon a road, footpath, nature strip or in any public place, in accordance with section 138 of the Roads Act 1993 and all of the conditions and requirements contained in the Road / Asset Opening Permit must be complied with.

The owner/builder must ensure that all works within or upon the road reserve, footpath, nature strip or other public place are completed to the satisfaction of Council, prior to the issuing of a subdivision certificate.

For further information, please contact Council’s Road / Asset Opening Officer on 9093 6691 or 1300 722 542.

Street and/or Sub-Address Numbering

6. Street numbering must be provided to the front of the premises in a prominent position, in accordance with the Australia Post guidelines and AS/NZS 4819 (2003) to the satisfaction of Council.

An application must be submitted to and approved by Council’s Director of City Planning, together with the required fee, for the allocation of appropriate street and/or unit numbers for the development. The street and/or unit numbers must be allocated prior to the issue of a subdivision certificate.

Please note: any Street or Sub-Address Numbering provided by an applicant on plans, which have been stamped as approved by Council are not to be interpreted as endorsed, approved by, or to the satisfaction of Council.

Subdivision Certificate

7. A formal application for a subdivision certificate is required to be submitted to and approved by the Council and all conditions of this development consent are required to be satisfied prior to the release of the subdivision plans.

ADVISORY NOTES

The following information is provided for your assistance to ensure compliance with the Environmental Planning & Assessment Act 1979, Environmental Planning & Assessment Regulation 2000, or other relevant legislation and Council’s policies. This information does not form part of the conditions of development consent pursuant to Section 4.17 of the Act.

A1 The requirements and provisions of the Environmental Planning & Assessment Act 1979 and Environmental Planning & Assessment Regulation 2000, must be fully complied with at all times.

Failure to comply with these requirements is an offence, which renders the responsible person liable to a maximum penalty of $1.1 million. Alternatively, Council may issue a penalty infringement notice (for up to $3,000) for each offence. Council may also issue notices and orders to demolish unauthorised or non-complying building work, or to comply with the requirements of Council’s development consent.

A2 This determination does not include an assessment of the proposed works under the Building Code of Australia (BCA) and other relevant Standards, as no construction works are approved as part of this consent.



	Subject Site

	Submissions received Ù North
	Locality Plan

1. Executive summary

The application is referred to the Randwick Local Planning Panel (RLPP) as the development contravenes the development standard for minimum subdivision lot size and lot width by more than 10%.

The proposal seeks development consent for the Torrens Title subdivision of an existing dual occupancy into 2 allotments (lot 131 = 219m²with 8.3m lot width at the building line), and lot 132 = 189m²with 4.6m lot width at the building line).

The key issue relates to the non-compliance with the minimum subdivision lot size for dual occupancies (240m²) for which development consent was granted before 6 July 2018, and the minimum lot width measured at the building line (6m). The Applicant submitted a written request to vary the development standard pursuant to Clause 4.6 of the Randwick Local Environmental Plan 2012 (RLEP 2012) that has adequately addressed the matters that are required to be demonstrated by subclause (3) of Clause 4.6. The variation is supported given Council’s Subdivision Code applies to the development, which states Torrens Title subdivision of a dual occupancy approved prior to 8 May 1995 is not subject to the minimum allotment size. The proposed development is within the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and objectives of Clause 4.1 of the RLEP 2012.

The proposal is recommended for approval subject to standard conditions.

2. Site Description and Locality

The subject site is known as 1B Yarra Road and is legally described as Lot 13 in DP 598440. The site is 408m², is irregular in shape and has a 13.42m frontage to Yarra Road to the north. The site contains an attached dual occupancy and limited vegetation.

3. Relevant history

The existing attached dual occupancy was approved on 7 September 1990 (DA/246/1990) under delegated authority.

4. Proposal

5. Relevant Environment Planning Instruments

5.1. Randwick Local Environmental Plan 2012 (LEP)

The site is zoned R2 Low Density Residential under Randwick Local Environmental Plan 2012 and the proposal is permissible with consent.

The proposal is consistent with the specific objectives of the zone in that the proposed subdivision will provide for the housing needs of the community, contribute to the desired future character of the area (in that it is in accordance with the Subdivision Code), and will encourage housing affordability.

The following development standards in the RLEP 2012 apply to the proposal:

Clause

Development Standard

Proposal

Compliance

Cl 4.1D: Subdivision of dual occupancies (attached) in Zone R2

Clause applies to a dual occupancy (attached) on land in Zone R2 for which development consent was granted before 6 July 2018.

Torrens title lots to comply with Clause 6.4 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

The attached dual occupancy was approved in 1990.

Lot size and lot width does not comply (refer to assessment table below).

Complies

Does not comply – refer to clause 4.6 assessment below.

The table below assesses the proposal against each of the development standards contained in Clause 6.4 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008:

Development standard	Proposal	Compliance
There must only be 1 dwelling on each resulting lot at the completion of the development.	There will be only one dwelling per lot.	Complies
Each resulting lot must be at least 6m wide (measured at the building line) and have lawful access, and frontage to, a public road.	Lot 131 = 8.3m Lot 132 = 4.6m	Lot 132 does not comply – refer to clause 4.6 assessment below.
The area of each resulting lot must be at least 240 square metres.	Lot 131 = 219m² Lot 132 = 189m²	Does not comply – refer to clause 4.6 assessment below.
The subdivision must not contravene any condition of any complying development certificate applying to the development.	No CDC applies to the site.	N/A

6. Clause 4.6 exception to a development standard

The proposal seeks to vary the following development standard contained within the Randwick Local Environmental Plan 2012 (RLEP 2012):

Clause

Development Standard

Proposal

Proposed variation

(%)

Cl 4.1D:

Lot Size and lot width (min)

240m²

6m at the building line

Lot 131 = 219m²

Lot 132 = 189m² lot size, and 4.6m lot width.

21m²

51m²lot size, and 1.4m lot width.

8.75%

21.25% lot size, and 23.33% lot width.

Clause 4.6 of RLEP 2012: Exception to a Development Standard relevantly states:

(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

(b) the concurrence of the Secretary has been obtained.

1. The applicant’s written request has adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case

Chief Justice Preston in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 reinforces his previous decision In Wehbe v Pittwater Council [2007] NSWLEC 827 where he identified five commonly invoked ways of establishing that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case. The most common is to demonstrate that the objectives of the development standard are achieved notwithstanding non-compliance with the standard. However, the Applicant seeks to demonstrate that compliance is unreasonable or unnecessary based upon the second method, being that the underlining objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary.

2. The applicant’s written request has adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard.

Chief Justice Preston at [24] notes that there here are two respects in which the written request needs to be “sufficient”.

It is the proposed development’s consistency with the objectives of the development standard and the objectives of the zone that make the proposed development in the public interest.

4. The concurrence of the Secretary has been obtained.

(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

6.1. Exception to the subdivision of dual occupancies (attached) in Zone R2 development standard (Cl 4.1D)

The Applicant’s written justification for the departure from the subdivision of attached dual occupancies development standard is contained in Appendix 2.

1. Has the applicant’s written request adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case?

The Applicant’s written request seeks to justify the contravention of the subdivision of attached dual occupancies development standard by demonstrating that compliance is unreasonable or unnecessary in the circumstances of the case because the underlining objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary.

The Applicant argues that the standard relating to minimum lot size and lot width is not relevant given the application of the Subdivision Code, which states:

Clause A (1) of the subdivision Code states:

Given the Subdivision Code applies to the dual occupancy that was approved prior to 1995, the minimum allotment size and width is not applicable as part of the subject proposal and therefore compliance with the subdivision of attached dual occupancies development standard is unreasonable or unnecessary in the circumstances of the case.

2. Has the applicant’s written request adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard?

The Applicant’s written request seeks to demonstrate that there are sufficient environmental planning grounds to justify contravening the subdivision of attached dual occupancies development standard on the basis that the site is capable of containing the proposed subdivision without any environmental impacts.

The Applicant’s written request has adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard.

Assessment against objectives of the minimum subdivision lot size standard

(a) to minimise any likely adverse impact of subdivision and development on the amenity of neighbouring properties,

(b) to ensure that lot sizes allow development to be sited to protect natural or cultural features, including heritage items, and to retain special features such as trees and views,

Assessing officer’s comment: The subdivision relates to an existing dual occupancy and no new works are proposed. Any future development of the lots will be subject to a separate assessment.

(c) to ensure that lot sizes are able to accommodate development that is suitable for its purpose.

Assessing officer’s comment: The subdivision relates to an existing dual occupancy and no new works are proposed. The lots are suitably sized to accommodate the existing development. Any future development of the lots will be subject to a separate assessment.

The development is consistent with the objectives of the minimum subdivision lot size standard.

Assessment against objectives of the R2 Low Density Residential zone

The objectives of R2 Low Density Residential zone are:

· To provide for the housing needs of the community within a low density residential environment.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

· To protect the amenity of residents.

· To encourage housing affordability.

· To enable small-scale business uses in existing commercial buildings.

Assessing officer’s comment: The proposal is consistent with the specific objectives of the zone in that the proposed subdivision will provide for the housing needs of the community, contribute to the desired future character of the area (in that it is in accordance with the Subdivision Code), and will encourage housing affordability.

The development is consistent with the objectives of the minimum subdivision lot size standard and the R2 Low Density Residential zone. Therefore the development will be in the public interest.

4. Has the concurrence of the Secretary been obtained?

In assuming the concurrence of the Secretary of the Department of Planning and Environment the matters in Clause 4.6(5) have been considered:

Does contravention of the development standard raise any matter of significance for state or regional environmental planning?

The proposed development and variation from the development standard does not raise any matters of significance for state or regional environmental planning.

Is there public benefit from maintaining the development standard?

Variation of the minimum subdivision lot size standard will allow for the orderly use of the site and there is a no public benefit in maintaining the development standard in this instance.

Conclusion

7. Development control plans and policies

7.1. Randwick Comprehensive DCP 2013

The DCP provisions are structured into two components: objectives and controls. The objectives provide the framework for assessment under each requirement and outline key outcomes that a development is expected to achieve. The controls contain both numerical standards and qualitative provisions. Any proposed variations from the controls may be considered only where the applicant successfully demonstrates that an alternative solution could result in a more desirable planning and urban design outcome.

The relevant provisions of the DCP are addressed in Appendix 3.

8. Environmental Assessment

The site has been inspected and the application has been assessed having regard to Section 4.15 of the Environmental Planning and Assessment Act, 1979, as amended.

Section 4.15 ‘Matters for Consideration’	Comments
Section 4.15 (1)(a)(i) – Provisions of any environmental planning instrument	See discussion in sections 6 & 7 below.
Section 4.15(1)(a)(ii) – Provisions of any draft environmental planning instrument	Nil.
Section 4.15(1)(a)(iii) – Provisions of any development control plan	The proposal generally satisfies the objectives and controls of the Randwick Comprehensive DCP 2013. See table in Appendix 3 below.
Section 4.15(1)(a)(iiia) – Provisions of any Planning Agreement or draft Planning Agreement	Not applicable.
Section 4.15(1)(a)(iv) – Provisions of the regulations	The relevant clauses of the Regulations have been satisfied.
Section 4.15(1)(b) – The likely impacts of the development, including environmental impacts on the natural and built environment and social and economic impacts in the locality	The environmental impacts of the proposed development on the natural and built environment have been addressed in this report. The proposed development is consistent with the dominant character in the locality. The proposal will not result in detrimental social or economic impacts on the locality.
Section 4.15(1)(c) – The suitability of the site for the development	The site is located in close proximity to local services and public transport. The site has sufficient area to accommodate the proposed land use and associated structures. Therefore, the site is considered suitable for the proposed development.
Section 4.15(1)(d) – Any submissions made in accordance with the EP&A Act or EP&A Regulation	No submissions were received.
Section 4.15(1)(e) – The public interest	The proposal promotes the objectives of the zone and will not result in any significant adverse environmental, social or economic impacts on the locality. Accordingly, the proposal is considered to be in the public interest.

9. Conclusion

That the application for Torrens title subdivision of an existing dual occupancy be approved (subject to conditions) for the following reasons:

· The proposal is consistent with the relevant objectives contained within the RLEP 2012 and the relevant requirements of the RDCP 2013

Appendix 1: Referrals

1. Internal referral comments:

1.1. Development Engineer

An application has been received for the Torrens title subdivision of the existing dual occupancy development at the above site into 2 lots.

This report is based on the following plans and documentation:

· Draft Subdivision Plans by Graham Kenneth Wilson;

· SEE

General Comments

The above site was subject to a Dual Occupancy - DA//246/1990 & LA/200/2003.

No on-site detention was required for the subject site as it was not a requirement in 1990 plus it was also located outside future on-site detention catchments.

Assessing officer’s comment: The Development Engineer’s recommended conditions have been included.

Appendix 2: Applicant’s written request seeking to justify the contravention of the development standard

Appendix 3: DCP Compliance Table

3.1 Section 2.1: Minimum Lot Size and Frontage

DCP Clause	Control	Proposal	Compliance
2.1
	i) The minimum frontage width for allotments resulting from the subdivision of land within Zone R2 (Low Density Residential) for the purposes of dwelling houses and semi-detached dwellings is 12m.	The proposed Torrens title subdivision will result in the dual occupancy becoming x 2 semi-detached dwellings with frontages of 8.97m (Lot 131) and 4.44m (Lot 132). A variation to the RDCP is supported given the variation relates to an existing dual occupancy approved prior to 8 May 1995, and as such consent may be granted without regard to minimum allotment sizes pursuant to the Subdivision Code (refer to Section 6 – Clause 4.6 exception to a development standard).	Variation is supported.
	ii) The minimum frontage width for allotments resulting from the subdivision of land within Zone R3 (Medium Density Residential) for the purposes of dwelling houses is 9m.	The site is zone R2.	N/A
	iii) Any subdivision of land within Zones R2 (Low Density Residential) and R3 (Medium Density Residential) must not create battle-axe or hatchet shaped allotments for the purposes of dwelling houses, semi-detached dwellings or dual occupancies (attached and detached).	Battle-axe shaped allotments are not proposed.	Complies
	iv) The minimum frontage width for the development of a dual occupancy (attached) within Zone R2 (Low Density Residential) is 15m.	A dual occupancy is not proposed.	N/A