Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55       (9 April 2015)

Justice Sheahan of the Land and Environment Court recently handed down judgment in relation to a section 56A appeal against a decision of Commissioner Brown regarding a residential development, and in doing so, held that “unit size” was a reason for refusal. This decision has implications for current and future development applications.

Commissioner Brown, in the earlier decision of Botany Development Pty Ltd v Council of the City of Botany Bay [2014] NSWLEC 1073, made interim orders providing for consent to be granted for the demolition of all improvements and for the construction of a 3-6 storey residential development containing 158 units.

Botany Bay City Council (Council) appealed that decision contending that Commissioner Brown misconstrued clause 30A (1) (b) of the State Environmental Planning Policy No. 65 (SEPP 65), and incorrectly determined that “unit size” was not a reason for refusing consent.

On appeal, the Court found that the “recommended internal and external areas” referred to in Clause 30A (1) (b) of SEPP 65, are those specified in the table of minimum areas in Part 3 of the Residential Flat Design Code (RFD Code).

The Court therefore upheld the section 56A appeal, and remitted the matter for further hearing before Commissioner Brown.

Issues

The Appellant Council submitted that Commissioner Brown erred in relying upon Clause 30A of the State Environmental Planning Policy No. 65 (SEPP 65) to approve the development.

Clause 30A (1) (b) states:

(1)   A consent authority must not refuse consent to a development application for the carrying out of residential flat development on any of the following grounds:

(b) apartment area: if the proposed area for each apartment is equal to, or greater than, the recommended internal area and external area for the relevant apartment type set out in Part 3 of the Residential Flat Design Code.

The RFD Code provides competing “recommended areas”, set out in the Rules of Thumb and the Table of minimum areas (Table).

This gave rise to the major issue between the parties in regards to the interpretation of “recommended internal area and external area” in Clause 30A(1)(b) of SEPP 65.  

The real question before the Court in relation to this issue was whether the Commissioner erred in determining that the unit sizes met the relevant minimums, and particularly, which minimums in the RFD Code are the correct ones to be applied.

The Council submitted that the recommended area and relevant RFD Code minimums to be applied are those specified in the Table, as opposed to the Rules of Thumb.

The Respondent disagreed, and submitted that the Rules of Thumb are the relevant minimums to be applied, and that Commissioner Brown was correct in applying those standards to make his decision.

The Court accepted the Council’s argument, finding that the relevant minimums to be applied were those specified in the Table. The Court based its decision by looking at the wording of Clause 30A (1)(b), and making the following connections:  

  • Recommended internal and external areas: internal and external areas are only set out in the table, and therefore the clause must be referring to the table otherwise it would make no sense.
  • relevant apartment type: no reference to apartment types can be found in the Rules of Thumb, and therefore this clearly refers to the nine apartment types identified in the table

Given its findings that the relevant minimum areas to be applied were those specified in the Table, the appeal was upheld and remitted for further hearing before Commission Brown for him to determine the matter in light of the reasons provided.

Implications

The effect of this decision is that where SEPP 65 applies to a development proposal, the larger minimum unit size standards specified in the Table should be utilised as opposed to, the smaller minimum unit size standards in the Rules of Thumb.

On that reading, a consent authority cannot refuse consent to a development application if it meets the standards specified in the Table (applying Clause 30A (1)(b) of SEPP 65), and hence the Rules of Thumb can no longer be relied on to overcome standards in the relevant DCP.