The decision of Council of the Kool Family Developments Pty Ltd v City of Ryde Council provides a reminder that objectives of the zone are a relevant consideration when considering the merits of a development application.
Facts
Kool Family Developments Pty Ltd (Kool Family Developments) made a development application (DA) for multi dwelling housing on the land known as 298 – 312 Blaxland Road, Ryde.
It was relevant that when the DA was lodged with the Council, development for the purpose of multi dwelling housing was permissible with development consent on land within Zone R2 Low Density Residential. After the DA had been lodged, the Ryde Local Environmental Plan 2014 (Ryde LEP) was amended so that development for multi dwelling housing became prohibited in that zone.
The application was deemed to be refused (read more about deemed refusals here), and Kool Family Developments lodged an appeal with the Land and Environment Court therafter.
Legislation
The objectives of the Zone R2 Low Density Residential in the Ryde LEP are as follows:
• 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 provide for a variety of housing types.
Clause 2.3(2) of the Ryde LEP states (with emphasis added):
2.3 Zone objectives and Land Use Table
…
(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
This provision is also found in all local environmental plans across the state of NSW, as it is a compulsory provision in the Standard Instrument – Principal Local Environmental Plan 2006.
Case law – the duty to “have regard to” or “to consider”
The content of the duty to consider something was considered in Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 where the Court relevantly stated:
The content of a statutory duty to “have regard to” or “to consider” something has been expressed in various ways. In Tickner v Chapman (1995) 57 FCR 451 … [it was] said that a duty to “consider” required an “active intellectual process” directed at the matter required to be considered. In Tobacco Institute of Australia Ltd v National Health and Medical Research Council … [it was] said:
…the “have regard to” formula has been interpreted consistently as requiring that the decision-maker subject to the formula must “take into account” the matter or consideration to which regard is to be had, and must “give weight to” that matter or consideration “as a fundamental element in making his determination”…
In Zhang v Canterbury City Council [2001] NSWCA 167, 51 NSWLR 589 … [it was] held that a matter which a statute required the decision-maker “to take into consideration” must be considered as a fundamental element in, or focal point of his deliberations. A “mere formalistic reference” does not satisfy a statutory requirement to have regard to a matter…
The High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48… approved the formula of Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457… that the statutory duty to “consider” means to “give proper, genuine and realistic consideration to the merits of the case…
The obligation imposed by clause 2.3 of the LEP was described in Codling v Central Coast Council [2019] NSWLEC 1158 as follows:
It is clear from the terms of clause 2.3(2) that there is no requirement for development within the zone to comply with, or to achieve, each of the objectives of the zone. Nevertheless, the clause requires that the consent authority “have regard to” those objectives. They are therefore a mandatory consideration in the assessment process and a proposed development ought not be antipathetic to those objectives.
Conclusions of the Court in Kool Family Developments v City of Ryde Council
The Court relevantly stated the following:
- The zone objectives must be taken into consideration in the determination of the DA as a fundamental element in, or focal point of the Court’s deliberations
- The first and third objectives for the R2 Low Density Residential zone were relevant to the DA, that is the following objectives:
• To provide for the housing needs of the community within a low density residential environment.
…
• To provide for a variety of housing types.
- In relation to the third objective, although the Court was satisfied that the development would further the objective of providing for a variety of housing types, the development was not of a type that was contemplated by the first objective. That is to say, the development would not provide for the housing needs of the community “within a low density residential environment”.
- The Court considered the zone objectives of the R2 Low Density Residential zone and contrasted them against comparable objectives within other zones. By considering the objectives in their broader context, it was apparent that the objective could not be achieved if multi dwelling housing was permitted, as this would undermine achieving a “low density residential environment”.
- Although there is no upper limit in the definition on the number of dwellings that can be developed as multi dwelling housing, multi dwelling housing above a certain size could not achieve the zone objective of providing for the housing needs of the community within a low density residential environment.
- Development which is classified as being permissible in the land use table should generally be presumed to be consistent with the objectives of the zone in which the development is to be carried out. However, that development must be multi dwelling housing which is of a scale that is consistent with being located in a low density residential environment.
- The development proposed by Kool Family Developments is of a scale that is antipathetic to the first objective of the R2 Low Density Residential zone, and is of such a scale that it will not provide for the housing needs of the community within a low density residential environment.
- While that finding, of itself, is not necessarily fatal to the approval of the DA, it is a significant factor to consider in deciding whether the DA merits approval.
Ultimately, the Court determined to refuse the development application.
Read more
You can read the full decision here: Kool Family Developments Pty Ltd v City of Ryde Council [2023] NSWLEC 1031
The Development Site 