By Aaron Gadiel, Partner
In a new decision, the Land and Environment Court has clarified the relationship between the Apartment Design Guide (ADG) and development control plans.
The Hillcrest decision
The Court handed down its judgment in Hillcrest Rose Bay Pty Ltd v Woollahra Municipal Council  NSWLEC 1662 on 28 October 2021. We acted for the developer in this matter.
The case concerned a development application for alterations and additions to an existing residential flat building.
The proposal included the construction of two new wings — on each side of an existing heritage building.
The local council argued (among other things) that the proposed rear setbacks of the two wings (ranging from 4.5 metres to 4.9 metres) meant that the development application should be refused.
The proposed setbacks complied with the setback requirements of the development control plan. However, the local council argued that the application should be refused because the rear of the new wings were less than nine metres away from buildings on adjacent land. The ADG’s design criteria and guidance for objective 3F-1 (‘adequate building separation distances’) provided for a nine-metre building separation.
The local council argued that the proposed separation distances were insufficient to provide sufficient acoustic privacy to the existing buildings on the adjacent land (objective 4H-1 deals with acoustic privacy, and in doing so, references objective 3F-1). No issue was pressed in relation to visual privacy.
The altered building did not exceed four storeys. So the ADG’s design criteria alone only envisaged a six-metre building separation. However, the local council also argued that — because the rear lot boundary was also a zone boundary (and the neighbouring zone was for low density) — a further three metres in building separation needed to be added under the design guidance (for objective 3F-1). This added up to the nine metres the local council said was required.
This meant that the local council was arguing that — despite compliance with the development control plan — the development should be refused because of the ADG.
The Court rejected this argument. The Court noted that clause 6A of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) sets aside provisions of a development control plan that deal with the following topics:
- visual privacy;
- solar and daylight access;
- common circulation and spaces;
- apartment size and layout;
- ceiling heights;
- private open space and balconies;
- natural ventilation; and
However, other provisions of a development control plan continue to apply. This includes provisions of the development control plan that relate to acoustic privacy (as it is not a topic included in the above list).
One of the stated objectives of the rear setback control in the development control plan (which the proposed wings satisfied) was to provide acoustic privacy to adjacent buildings.
As a result, the Court accepted our argument that section 4.15(3A)(a) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) applied. This provision says that where a development control plan contains relevant provisions — and those provisions set standards with respect to an aspect of the development — the consent authority ‘is not to require more onerous standards with respect to that aspect of the development’.
The Court rejected the local council’s argument that the ‘more onerous standard’ in the ADG could override the DCP and be applied despite section 4.15(3A)(a). Development consent was granted.
In short, this decision has confirmed that:
- where a proposed development complies with a relevant standard in a development control plan;
- the ADG includes relevant design criteria or guidance that is more onerous; and
- the development control plan standard has not been set aside by SEPP 65,
it will be sufficient for the proposed development to comply with the development control plan standard.
Other recent decisions
This latest decision follows quickly after two other judgments this month where the Court also accepted our ‘section 4.15(3A)(a)’ arguments. (We acted for the developers in both these recent matters.)
The Court handed down its decision in Leice Pty Ltd v City of Canada Bay Council  NSWLEC 1627 on 20 October 2021. The Court considered a development application for a mixed-use development comprising a 10-18 storey building with 201 residential units and ground floor retail.
In that matter the development control plan contained a series of diagrams that showed site-specific setbacks to some streets, but a zero setback to one particular street. The development was proposed with a zero-setback to the relevant street frontage. The local council attempted to argue that a four-metre setback was nonetheless expected.
The Court rejected the local council’s argument and agreed with us that this would be requiring a ‘more onerous standard’ to be applied (than the standard set out in the DCP). The development consent was granted.
The Court handed down its decision in Merman Investments Pty Ltd v Woollahra Municipal Council  NSWLEC 1582 on 1 October 2021. This case concerned a development application for a three-to-four storey residential flat building in Double Bay.
This development complied with the side setbacks set out in the development control plan. However, the local council argued that the building was still not set back far enough and that there would be adverse amenity impacts as a result.
Again, the Court applied ‘section 4.15(3A)(a)’ and said that it could not hold the developer to a more onerous standard (than that set out in the development control plan). Development consent was granted.
A body of case law is evolving that sends a clear signal to local councils about their over-reach.
We often see local councils attempting to force developers into accepting significant reductions in gross floor area for reasons that do not have any proper basis in the planning controls.
‘Section 4.15(3A)’ is just one tool that can be used to fight off conduct of this kind. The increasing number of Court decisions that apply this provision will, hopefully, send a firm message to local councils that there are limits to what they can ask for.