Abraham v Inner West Council [2019] NSWLEC 1370 | Case summary

Land and Environment Court (NSW)|2019-08-02

The applicant's written request to contravene the height of buildings 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 [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 functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action [25]). The consent authority has to 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 the Chief Judge in Wehbe v Pittwater Council (2007) 156 LGERA 446 [42]-[51] ("Wehbe") and repeated in Initial Action [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action [16]):

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;
underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

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 in cl 4.6(4)(a)(ii) 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 [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action [26]).
I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard, for the reasons outlined above and given by the applicant in the written request.

Contravention of the FSR development standard

The proposal has a FSR of 1.18:1 and the FSR development standard for the site is 0.9:1.
The applicant provided a written request seeking to justify the contravention of the FSR development standard. The applicant's written request to contravene the height of buildings development standard
The applicant's written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary because the proposal is an adaptive reuse of an existing building and the existing building fully occupies the site. The bulk and mass of the development has been located centrally within the site so as to minimise its visual impact and provide a transition in scale between the higher building to the east and the lower development to the west. The proposed bulk and scale of the development is consistent with that which currently exists on the site and retains the existing presentation of the former warehouse to Beattie Street.
I am satisfied, pursuant to cl 4.6(4)(a)(i), 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 development standard as a justified response to the constraints and opportunities of retaining and adaptively reusing the warehouse buildings on the site. I am satisfied that justifying the aspect of the development that contravenes the development standard can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action [23].

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

I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard, for the reasons outlined above and given by the applicant in the written request. Orders
The orders of the Court are: 1. The applicant is granted leave to amend the application by relying on the amended plans and documentation referred to in condition 2 of Annexure A. 2. The applicant is to pay the respondent's costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $8,000. 3. The written requests to vary the development standards in cll 4.3A and 4.4(2B)(b)(ii) of Leichhardt Local Environmental Plan 2013 are upheld. 4. The appeal is upheld. 5. Development Application No. D/2018/243 for site consolidation, alterations and additions to the existing warehouse buildings at the site and change of use to a multi dwelling housing development containing three dwellings and 2 car spaces at 75-77 Beattie Street, Balmain, is approved, subject to the deferred commencement condition and the conditions of consent at Annexure A.

Susan O'Neill Commissioner of the Court Annexure A (439 KB, pdf)

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: 06 August 2019

Contravention of the landscaped areas for residential accommodation in Zone 1 development standard

The proposal has a landscaped area of 6.85% and site coverage of 80.5%.
The applicant provided a written request seeking to justify the contravention of the landscaped area for residential accommodation in Zone 1 development standard.
Clause 4.6(4) 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] NSWLEC 118 [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(2) LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action [29]).

(2007) 156 LGERA 446

Abraham v Inner West Council

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Judgment (5 paragraphs)

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Cases Cited (4)