Item 22 PL31/12 Previously Confidential Report - Legal Advice - Development Consent for Affordable Housing Development at Nos. 7, 9 and 11 Hannah Street and Nos. 129 to 131 Copeland Road, Beecroft..................................................................................................................... 1
Group Manager's Report No. PL31/12
Date of Meeting: 17/10/2012
22 PREVIOUSLY CONFIDENTIAL REPORT - LEGAL ADVICE - DEVELOPMENT CONSENT FOR AFFORDABLE HOUSING DEVELOPMENT AT NOS. 7, 9 AND 11 HANNAH STREET AND NOS. 129 TO 131 COPELAND ROAD, BEECROFT
Note: This report was considered confidential, however following its consideration at Councils General Meeting on 17 October 2012, Council resolved that the report and attachments be made publicly available.
· In November 2011, a development application was lodged with Council for an affordable housing development comprising 46 dwellings at Nos. 7-11 Hannah Street and 129-131 Copeland Road, Beecroft.
· The application was the subject of significant community opposition with 238 submissions received objecting to the proposal.
· As the development has a capital investment value of $17.48 million and is affordable housing, the Sydney West Region Joint Regional Planning Panel (JRPP) was the consent authority for the application in accordance with Schedule 4A of the Environmental Planning and Assessment Act, 1979.
· The JRPP accepted that the site is suitable for the development and resolved to approve the application subject to conditions of consent.
· At its meeting on 16 August 20912, Council resolved to seek legal advice as to whether there are any grounds for appeal against the approval of the application by the JRPP.
· Legal advice has been received from Council’s solicitor that they have not been able to indentify any matter which would be likely to support a successful challenge to the validity of the development consent granted by the Panel.
THAT Council receive and note Group Manager’s Report No. PLN31/12, presenting legal advice concerning whether there are grounds to challenge the validity of development consent No. 1305/2011 for an affordable housing development at Nos. 7, 9 and 11 Hannah Street and Nos. 129 to 131 Copeland Road, Beecroft.
The purpose of this Report is to advise Council of legal advice from its solicitor concerning any grounds for challenging the validity of Development Consent No. 1305/2011 and the prospects of succeeding in any such challenge.
Development Application No. 1305/2011 was lodged with Council on 30 November 2011 for demolition of existing dwellings and construction of an affordable housing development at Nos. 7, 9 and 11 Hannah Street and 129-131 Copeland Road, Beecroft. The documentation submitted with the application includes legal advice regarding the applicability of State Environmental Planning Policy (Affordable Rental Housing) 2009 to the proposed development. Following receipt of the application, further legal advice was submitted in response to a request from Council concerning the applicability of the SEPP given that the development primarily relates to housing for seniors or people with a disability.
The application was exhibited from 11 January to 1 February 2012 in accordance with Council’s Notification and Exhibition Development Control Plan. Council received 238 submissions objecting to the proposal.
As the development has a capital investment value of $17.48 million and is affordable housing, the application was referred to the Sydney West Region Joint Regional Planning Panel in accordance with Schedule 4A of the Environmental Planning and Assessment Act, 1979 as the relevant consent authority for the application. A briefing meeting of the Panel was conducted on 29 March 2012.
An Assessment Report was prepared by Planning Division officers for consideration by the JRPP at its meeting on 7 June 2012. The Report recommended refusal of the application generally on the grounds that the bulk, scale and density of the development would be inconsistent with the character of the low density residential area and would detract from the significance of the surrounding Heritage Conservation Area. The Panel resolved to defer the application to allow the applicant to submit amended plans to address issues including height, privacy, pedestrian access and drainage.
Following the Panel meeting, Council officers met with the applicant to discuss the Panel’s concerns and submission of amended plans. The applicant subsequently submitted amended plans which were re-notified for public comment. Council received 30 submissions objecting to the amended proposal.
A further Assessment Report evaluating the amended plans was prepared by Planning Division Officers for consideration by the JRPP at its meeting on 26 July 2012. The Report noted that the Panel had previously determined that the site was suitable for the proposed affordable housing development subject to specific design issues being addressed. Accordingly, the assessment in the Report was limited to evaluating the amended plans against the outstanding concerns raised by the Panel. The Report noted that the amended plans satisfactorily addressed the issues raised by the Panel and therefore, recommended approval of the application. The Panel resolved to approve the application subject to the recommended conditions of consent. Approval of the application was notified in the local newspaper on 15 August 2012.
Following determination of the application by the Panel, Council has received a large number of representations from residents questioning the legal advice submitted by the applicant in support of the application. At its meeting on 15 August 2012, Council considered a Matter of Urgency concerning the proposal and resolved to:
1. Seek legal advice as to whether there are any grounds for appeal against the approval by the Sydney West Region Joint Regional Planning Panel of Development Application No. DA/1305/2011 for demolition of existing dwellings and construction of an Affordable Housing development comprising 46 dwellings at Nos. 7, 9 and 11 Hannah Street and 129-131 Copeland Road, Beecroft.
2. Write to the Minister for Planning and Infrastructure and local State Members reiterating its concerns that State Environmental Planning Policy (Affordable Rental Housing) 2009 continues to over-ride Council's planning controls and results in developments like the one at Nos. 7, 9 and 11 Hannah Street and 129-131 Copeland Road, Beecroft that provide for increased residential densities that are inconsistent with Council’s adopted Housing Strategy with consequential impacts on the amenity of established low density residential areas.
In accordance with Council’s resolution, legal advice was sought from Council’s solicitor as to whether there are any grounds for appeal against the approval of the application by the JRPP and Council’s prospects of success where applicable. Letters were also forwarded to the Minister for Planning and Infrastructure and local State Members reiterating Council’s concerns regarding the operation of SEPP (Affordable Rental Housing) 2009.
Legal advice (copy attached) has been received from Council’s solicitor and is the subject of this report.
Council’s solicitor has reviewed the legal advice submitted by the applicant, the Council officer’s planning reports to the JRPP and the determination by the Panel. Having regard to this information and process for the evaluation of the application, Council’s solicitor advises as follows:
There is no power given in the Environmental Planning and Assessment Act 1979 (EP&A Act) for a Council or an objector who is dissatisfied with the determination of a Joint Regional Planning Panel to grant consent to a development application for development to appeal to the Land and Environment Court against the determination unless the determination relates to a development application for designated development.
The development application subject of the determination by the JRPP was not a development application for designated development.
However, pursuant to Section 123 of the EP&A Act any person (including the Council or an objector) may bring proceedings in the Land and Environment Court to remedy or restrain a breach of the EP&A Act whether or not any right of that person has been or may be infringed by or as a consequence of that breach. A breach of the EP&A Act includes a contravention of or failure to comply with the Act, the regulations or an environmental planning instrument.
Accordingly, any person could take proceedings in the Land and Environment Court seeking to establish that the grant of a particular development consent was in breach of the Act, the regulations or an environmental planning instrument but not in respect to the merits of the determination to grant development consent.
The two reports prepared by Council staff in respect of the development application appear to address the matters that the JRPP was required to take into consideration in determining the development application pursuant to Section 79C(1) of the EP&A Act.
Council’s solicitor acknowledges that questions were raised about the applicability of the AHSEPP to the development by objectors and in the assessment of the application. It is noted that where it could be demonstrated that the SEPP did not apply to the development, the validity of the consent granted by the JRPP could be questioned in legal proceedings. In regard, to the applicability of the SEPP, Council’s solicitor notes that Clause 10 of Division 1 of the Policy states as follows:
10 Development to which Division applies:
(1) This Division applies to development for the purposes of dual occupancies, multi-dwelling housing or residential flat buildings if:
(a) the development concerned is permitted with consent under another environmental planning instrument, and
(b) the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977.
(2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area.
(3) Despite subclause, (1), this Division does not apply to development on land that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed use, or within a land use zone that is equivalent to any of those zones”.
Accordingly, to determine the applicability of Clause 10 to the development, Council’s solicitor identifies the following relevant questions:
(a) Is the development for the purpose of “dual occupancies, multi-dwelling housing or residential flat buildings?
In answering this question, Council’s solicitor concludes that:
The development subject of the consent includes more than 3 dwellings but each of the dwellings does not have access at ground level. Accordingly, the development would fall within the standard instrument definition of “residential flat building” and the answer to question (a) is “yes”.
(b) If the answer to question (a) is “yes”, is such development permitted with consent under another environmental planning instrument (in this case LEP 1994)?
In answering this question, Council’s solicitor concludes that:
. . . .a building containing 3 or more dwellings where each of the dwellings does not have access at ground level would fall within the definition of the term “multi-unit housing” as defined in clause 23 of LEP 1994 and would therefore be development that is permitted with consent under LEP 1994. Accordingly, the answer to question (b) would also seem to be “yes”.
It follows in our view that the development was development to which Division 1 of the AHSEPP applied.
In conclusion, Council’s solicitor states that:
Having regard to the information contained in the reports that were prepared by Council staff in relation to the development application for consideration by the JRPP we have not been able to indentify any matter which would be likely to support a successful challenge to the validity of the development consent granted by the JRPP on 26 July 2012 to the development.
In summary, Council’s solicitor advises that legal proceedings can only be commenced in relation to the approval by the JRPP to remedy or restrain a breach of the EP&A Act. In this instance, Council’s solicitor advises that they have not been able to identify a breach of the EP&A Act in respect to either the permissibility of the development or the process followed in assessing the application.
The provision of the legal advice has cost $2,800. This cost has been expended from the Planning Division Legal Budget.
The officer responsible for the preparation of this Report is the Group Manager, Planning Division – James Farrington who can be contacted on 9847 6750.
Letter to Council
File Reference: DA/1305/2011
Document Number: D02019310