30 Fairlight Pty Limited v Northern Beaches Council [2022] NSWLEC 1615 | Case summary

Land and Environment Court (NSW)|2022-10-27

The applicant's written request to contravene the FSR development standard

The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: (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
The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the Council's consent authority functions, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority must be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ("Wehbe") and repeated in Initial Action [17]-[21]:

the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
the development standard has been abandoned by the council;
the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

Environmental planning grounds

The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature. Environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as it refers to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]).
The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).
I accept the Council's submission that the majority of the "environmental planning grounds" cited by the applicant in the written request merely promote the benefits of carrying out the development as a whole and cannot be characterised as environmental grounds that justify the contravention of the FSR development standard. Nevertheless, I am satisfied that the written request identifies an environmental planning ground sufficient to justify the exceedance of the FSR development standard by referring to the proposal as being compatible with the existing bulk and scale of the built form in the context of the site, and that this can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23]. The development in the vicinity of the site, particularly on the high side of Fairlight Street, has a medium density residential character, as it consists of residential flat buildings of varying scales on a variety of allotment sizes, set in landscaped grounds, with high-rise residential towers in the background.
I am satisfied, pursuant to cl 4.6(4)(a)(i) of LEP 2013, that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the exceedance of the FSR development standard as justified by an absence of amenity impacts on adjoining development and responsive to the existing character of the high side of Fairlight Street.

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

The second opinion of satisfaction required under cl 4.6(4)(a)(ii) of LEP 2013 is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).
I accept and adopt the agreement of the parties that the R1 zone objectives are met by the proposal.
I am satisfied that the proposal achieves the objectives of the FSR development standard, for the following reasons:

The proposed building envelope is consistent with the existing streetscape character on the high side of Fairlight Street. The proposal will sit comfortably in the streetscape and be commensurate with the scale of development in the vicinity of the site, and with the proportions of the site.
The side setbacks of the proposal, when viewed from the street, are 2.6m on the western side and 3.16m on the eastern side. The proposal is two storeys over a basement when viewed from Fairlight Street. The streetscape elevation and proportions in relation to the site are typical of residential development in the vicinity of the site. The side setbacks are adequate given the proportions of the site and the lack of amenity impacts on adjoining development. When viewed from the street, the proposal will complement the streetscape.
The proposed building envelope is consistent with the future streetscape character of the high side of Fairlight Street. The proposed building envelope has a volume broadly envisaged by the development standards for the site, being a two-storey building over a basement, with an uppermost level setback from the façades below.

Consideration

I accept the agreement of the landscaping experts that the amended landscape plans (Ex H) successfully address the contentions raised by the Council regarding landscaping and the provision of deep soil areas; and that the landscaping proposed achieves the objectives for landscaping under SEPP 65 and the ADG and DCP 2013.
I am satisfied that the Council's contention that the proposal results in visual privacy impacts on adjoining development as a result of insufficient side setbacks is not made out, and the side setbacks achieve a reasonable level of privacy, for the following reasons:

The apartments are orientated to the south, towards the view; the private open space of all apartments are at the front and rear of the site; no dwelling "faces" a side boundary and the windows in the side elevations are not the primary outlook from any of the apartments; privacy concerns on Levels 1 and 2 have been addressed by the position and treatment of those windows; the encroachment of the bedrooms on the Ground Floor and Level 1 into the side setbacks have no windows in those side elevations; and the balconies on Levels 1 and 2 include planters to prevent residents from being able to stand at the edge of balconies.
The side elevations are articulated and modulated and designed so as to minimise loss of privacy to adjacent development and mitigate direct viewing between windows and outdoor living areas.
I accept the planning experts' agreement that the proposal complies with the side setback controls under 4.1.4.2 of DCP 2013 and that full compliance with the ADG separation distances would render the site undevelopable without amalgamation with the adjoining property to the west.
An increase in the side setbacks of the proposal, which the Council submitted should be somewhere between the DCP control and the (unachievable) ADG separation distance, would not significantly alter the level of visual privacy between the site and adjoining properties.
There is no minimum site area development standard or control in LEP 2013 or DCP 2013 for residential flat buildings in the R1 zone. Had the Council had a concern about residential flat building development in the R1 zone on sites that cannot achieve the ADG separation distances, the Council would have included a minimum site area development standard or control for residential flat building development as part of a strategic planning exercise.
32 Fairlight Street can be developed as a residential flat building with a similar spatial layout to the proposal. Neither the building envelope or the treatment of side façades of the proposal necessarily impinges on the development potential of the neighbouring property.
Increasing the side setbacks of the proposal would preclude the proposed spatial layout of the Ground Floor and Level 1, with two north-south orientated long apartments side by side, separated by a party wall and the core, because of the relatively narrow width of the site. The proposed spatial layout achieves the desired southern outlook for all apartments, and apartments with generous access to natural light and ventilation. The proposed spatial layout locates all private open space on the upper two floors at the front and rear of the site, where it has the least impact on adjoining properties. The proposal is a superior outcome in terms of high amenity for all apartments when compared to a building envelope with increased side setbacks and two apartments per level.

The wall height control of 9.5m, at 4.1.2.1 of DCP 2013, is exceeded by 400mm at the front of the building. The proposal complies with the height of buildings development standard of 11m. I am satisfied that the proposal achieves the objectives for streetscape at 3.1 of DCP 2013 because the presentation of the proposal to the street is compatible with the scale of development on the high side of Fairlight Street and the landscape experts agreed that the proposal's presentation to the street is consistent with the landscape character of the locality.

Conclusion

I am satisfied that the applicant's written request to contravene the FSR development standard has adequately addressed the matters required to be demonstrated by subcl 4.6(3) of LEP 2013 and that the proposal will be in the public interest because it is consistent with the objectives of the FSR development standard and the objectives for development within the R1 zone.
I am satisfied that the side setbacks of the proposal do not result in unreasonable visual privacy impacts on adjoining properties.

Orders

The orders of the Court are: 1. The applicant is granted leave to amend the application to rely on the documentation listed under condition 1(a) of the conditions of consent at Annexure A. 2. The appeal is upheld. 3. Development Application No. 2021/2034 for the demolition of existing structures and construction of a residential flat building, at 30 Fairlight Street, Fairlight, is determined by the grant of consent, subject to the conditions of consent at Annexure A 4. The exhibits, other than Exhibits 1, A, F and H, are returned.

Annexure A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 December 2022

Submissions

The applicant relied on a recent development approval of a three-storey residential flat building over a basement on a site with an area of 559m2 at 16 Upper Gilbert Street, Manly (Gisona Pty Ltd v Northern Beaches Council [2020] NSWLEC 1669), which has a FSR of 0.946:1 (where the FSR development standard is 0.75:1) and an eastern side setback ranging between 2.4m and 3m.
The Council submitted that the environmental planning grounds relied on by the applicant in the written request to contravene the FSR development standard (Ex 4) merely promote the benefits of carrying out the development as a whole and as such are not environmental planning grounds (STM 123 No. 7 Pty Ltd v Waverley Council [2020] NSWLEC 1495 at [82]-[91]); nor are they sufficient environmental planning grounds to justify the contravention of the development standard. The Council relied on the revised planning principle, "criteria for assessing impact on neighbouring properties" in Davies v Penrith City Council [2013] NSWLEC 1141 at [121], particularly the question as to the reasonableness of the proposal causing the impact.
The Council submitted that the "Note" under setbacks and building separation at 4.1.4 of DCP 2013 and quoted above at [25], are part of the provisions of the DCP and qualifies the requirements for setbacks and building separation for residential flat building development to which the ADG applies.
The parties agreed that the R1 zone objectives are met by the proposal.

Contravention of the FSR development standard

The proposal has a FSR of 0.9:1 (gross floor area of 776m2). The FSR development standard for the site is 0.75:1 (gross floor area of 646.3m2).
The applicant provided a written request seeking to justify the contravention of the FSR development standard (Ex 4).
Clause 4.6(4) of LEP 2013 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] "Initial Action"). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (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.
On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2013 (Initial Action at [29]).

(2018) 236 LGERA 256

(2007) 156 LGERA 446

30 Fairlight Pty Limited v Northern Beaches Council

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cases Cited (10)