COMMISSIONER: Gary Abrams seeks consent for the demolition of the existing commercial building located on the corner of Power Avenue and Brennan Street. Following demolition works he seeks approval for the construction of a new four storey residential flat building containing 14 units. Given the period after which a development application is deemed to be refused had expired, in February 2018 Mr Abrams appealed to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("the Act").
The application was amended by leave of the Court in September 2018. The amendments include:
the deletion of two, one-bedroom apartments,
the change of use (and reconfiguration) of the ground floor to contain one commercial tenancy,
the addition of a communal roof top terrace, and a concordant increase in the height of the building;
reconfiguration of the residential apartments on levels 1 thru 3; and
changes to the external façade of the building.
Leave was granted for further amended plans at the commencement of the proceedings. Leave was not objected to by the Council, subject to the consideration of any costs arising. The parties agree that the amendments to the application are not minor. I concur with the submission of the parties that the amendments are not minor and costs under s 8.15(3) of the Act arise (Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 at [42]). Refer Order (2) at paragraph [85].
The Council argues that the application should be refused by the Court on the grounds that the variation requested to the floor space ratio standard is not well founded and provides insufficient justification to support the variation.
In its Amended Statement of Facts and Contentions the Council provides further particulars as follows:
36. The applicant has failed to demonstrate the proposal satisfies objective (b) of Clause 4.4: Floor Space Ratio (FSR), of the Sydney Local Environmental Plan 2012 (LEP 2012) which seeks to: regulate the density of development, built form and land use intensity; and to control the generation of vehicle and pedestrian traffic. The development, as proposed, significantly exceeds the density envisaged for the site and the surrounding area. Allowing an exceedance to the FSR in this manner would set an undesirable precedent in the area.
37. The applicant has failed to demonstrate the proposal satisfies objective (c) of Clause 4.4 of LEP 2012, which requires that development must provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure. Whilst the proposal provides a contribution towards additional infrastructure within the Green Square Locality that equates to a bonus floor space ratio of 0.5:1, it fails to provide for additional demands on infrastructure that will result from the proposal to exceed the permissible FSR.
38.The applicant has failed to demonstrate the proposal satisfies objective (d) of Clause 4.4 of LEP 2012, which requires that new development must reflect the desired character of the locality in which it is located and minimise adverse impacts on the amenity of that locality.
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40. The proposal does not satisfy the requirements of clause 4.6 (3) of the LEP 2012. The applicant has failed to demonstrate that complying with the FSR development standard is unreasonable and unnecessary and that and, that there are sufficient environmental planning grounds to justify the contravention, pursuant to clause 4.6 of LEP 2012.
…
42. In accordance with clause 4.6(5)(b) of LEP 2012, the public benefit of maintaining the development standard must be considered. The FSR control is in place to strategically mange densities that corresponds with the capacity of existing and planned infrastructure. Prohibiting increases to the envisaged density such as the proposed development is a sound reason to maintain FSR standard for the public benefit.
43. A development which is compliant with the FSR control would be able to: provide private communal open space without breaching the LEP height limit; deep soil area; provides a greater number of naturally cross-ventilated apartments, improve solar access to the apartments within the development and result in a built form more compatible with the locality. In light of these matters it is considered compliance with the FSR is reasonable and necessary in the circumstances.
(Exhibit 1)
During the proceedings, on the basis of the agreed expert evidence, Council conceded that the only remaining issue between the parties is whether the proposed variation to the FSR control was able to be supported.
Council argues that the variation should not be supported as:
1. the written request fails to establish that compliance with the FSR control is unreasonable or unnecessary; and
2. fails to establish that the proposal satisfies: objective (b) and objective (c) of 4.4 which require that development provide for an intensity of development that is commensurate with the capacity of the existing and planned infrastructure; and
3. that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.
On this basis the Council argues that the Court has no power to consent to the development and it should be refused.
Following a consideration of the evidence presented and the submissions of the parties, I find that the applicant's cl 4.6 written request, seeking a variation to the floor space ratio standard in the LEP 2012, does not satisfactorily demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard. As a result the appeal is dismissed as the precondition is not met.
[2]
The site and its locality
The subject site is located on the intersection of Power Avenue and Brennan Street, with a street address of 9 Power Avenue. The site is rectangular in shape and contains a two storey commercial building which occupies the entirety of the site. The site has an area of 372m2, an approximately 10m frontage to Power Avenue and an approximately 37m frontage to Brennan Street.
The site is not a heritage item nor contained within a heritage conservation area.
To the north of the site, across Power Avenue, is a large public park, Alexandria Park. To the east of the site are a group of contemporary three-storey residential terraces. To the south of the site, across a private lane, is a three-storey warehouse that has been converted to residential. The private lane is 6m wide and is owned by the adjoining developments to the east and south. The subject site has no legal access or benefit from the lane.
On the opposite side of Brennan Street is a four to five storey residential apartment development known as Atlas Apartments.
[3]
Relevant background:
The site has been the subject of two previous development approvals:
Development Application: D/2013/383 : a deferred commencement for the partial demolition of the existing two-storey commercial building and conversion to a residential flat building consisting of 12 x 1 bedroom units and 2 x 2 bedroom units and ground floor level car parking.
This consent was not activated and lapsed on 21 October 2016.
Development Application: D/2015/351: a deferred commencement for the demolition of the existing building and construction of a new 4 storey residential flat building containing 14 residential apartments and 3 ground floor car parking spaces. This consent was not activated and lapsed on 2 November 2017. The applicant identifies in their statement of environmental effects that D/2015/351 approved an FSR of 2.4:1, a variation to the FSR control which was 1.5:1 (Exhibit A).
Development Application: D/2016/631: for a 4 storey residential flat building containing 19 residential apartments. This application was the subject of an appeal to the Land and Environment Court in: Abrams v The Council of the City of Sydney [2017] NSWLEC 1371 and on appeal in: Abrams v The Council of the City of Sydney (No 2) [2018] NSWLEC 85 (Abrams (No.2)). In those proceedings development consent was refused and the appeal against the determination of refusal dismissed by the Court.
The relevance of these consents to the Courts consideration of a written variation request under cl 4.6 of LEP 2015 was considered in the decision of Robson J in Abrams (No.2) at [39]:
"Existing development consents either on the subject land or in the locality may be instructive for the purpose of an "abandonment" argument in Class 1 appeals in this Court, or in informing the desired character or future streetscape of a locality. However, whilst it is not necessary to decide in this case, I do not consider that a Commissioner of the Court would necessarily fall into legal error by failing to consider a development consent or other instrument that was only relevant by reason of s 39(4) of the LEC Act, especially in circumstances where the instrument was not explicitly brought to the Commissioner's attention, which is not the case in the present proceedings."
To the extent that these previous consents are relied on by the Applicant Robson J found in Abrams (No.2) at [47] that the fact that a consent authority was satisfied of the merit of a variation, or that it was justified "on one occasion is no indication that they will be met on a future occasion in respect of a different application, and the fact that the standard has not been applied previously does not alter the fact that cl 4.6 must be applied by the consent authority according to its terms in respect of each application".
[4]
Planning Controls
State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) applies to the site. This policy provides for the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment of any existing land contaminants. Relevantly cl 7 of SEPP 55 provides a precondition to consent as follows:
7 Contamination and remediation to be considered in determining development application
(1) A consent authority must not consent to the carrying out of any development on land unless:
(a) it has considered whether the land is contaminated, and
(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and
(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.
…
It is agreed between the parties that the report titled 'Detailed Site Investigation and Acid Sulphate Soil Assessment Report, 9 Power Avenue, Alexandria' prepared by Trace Environmental, and the proposed conditions requiring the implementation of its recommendations, meet the requirements of cl 7 of SEPP 55.
In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy.
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)).
LEP 2012 applies to the site. Relevant to this appeal LEP 2012 has the following aims (cl 1.2(2)):
…
(c) to promote ecologically sustainable development,
(d) to encourage the economic growth of the City of Sydney by:
(i) providing for development at densities that permit employment to increase, and
(ii) retaining and enhancing land used for employment purposes that are significant for the Sydney region,
(e) to encourage the growth and diversity of the residential population of the City of Sydney by providing for a range of appropriately located housing, including affordable housing,
(f) to enable a range of services and infrastructure that meets the needs of residents, workers and visitors,
(g) to ensure that the pattern of land use and density in the City of Sydney reflects the existing and future capacity of the transport network and facilitates walking, cycling and the use of public transport,
(h) to enhance the amenity and quality of life of local communities,
(i) to provide for a range of existing and future mixed-use centres and to promote the economic strength of those centres,
(j) to achieve a high quality urban form by ensuring that new development exhibits design excellence and reflects the existing or desired future character of particular localities,
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Pursuant to LEP 2012 the site is zoned B4: Mixed Use. The objectives of the B4 zone are as follows:
• To provide a mixture of compatible land uses.
• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
• To ensure uses support the viability of centres.
The proposal is defined as 'residential accommodation (g) multi dwelling housing' and is permissible, with consent, in the zone.
Clause 4.3 provides for a maximum height for buildings on the site of 15m. The proposed development exceeds this standard with a height of 15.25m.
The objectives of cl 4.3 are:
(a) to ensure the height of development is appropriate to the condition of the site and its context,
(b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,
(c) to promote the sharing of views,
(d) to ensure appropriate height transitions from Central Sydney and Green Square Town Centre to adjoining areas,
(e) in respect of Green Square:
(i) to ensure the amenity of the public domain by restricting taller buildings to only part of a site, and
(ii) to ensure the built form contributes to the physical definition of the street network and public spaces.
Clause 4.4 provides for a maximum FSR of 1.5: 1 (including a bonus 0.5:1 that is permissible under cl 6.14 for community infrastructure in Green Square). The applicant has submitted a public benefit offer to obtain the additional 0.5:1 and a FSR of 2.64:1 is proposed. The variation equates to 428m².
The objectives of cl 4.4 are:
(a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future,
(b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,
(c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,
(d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.
Accordingly the applicant has submitted a written request pursuant to cl 4.6 to vary the maximum height standard and the maximum FSR standard for the site.
Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly states:
4.6 Exceptions to development standards
(1) The objectives of this clause are as follows:
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:
(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.
(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.
(5) In deciding whether to grant concurrence, the Secretary must consider:
(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the development standard, and
(c) any other matters required to be taken into consideration by the Secretary before granting concurrence.
…
At cl 4.6(8) of LEP 2012 a number of exclusions to the application of the flexibility afforded by the provisions of the clause are listed. None of these exclusions apply to the subject development.
Clause 6.21 of LEP 2012 applies to the development. The objective of the clause is 'to deliver the highest standard of architectural, urban and landscape design'. At subcl (3) the consent authority is required to be satisfied that 'in the opinion of the consent authority, the proposed development exhibits design excellence' in order to have power to grant consent to development. In forming that opinion the consent authority is required to have regard to the following factors (cl.6.21(4)):
(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,
(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,
(c) whether the proposed development detrimentally impacts on view corridors,
(d) how the proposed development addresses the following matters:
(i) the suitability of the land for development,
(ii) the existing and proposed uses and use mix,
(iii) any heritage issues and streetscape constraints,
(iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,
(v) the bulk, massing and modulation of buildings,
(vi) street frontage heights,
(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,
(viii) the achievement of the principles of ecologically sustainable development,
(ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network,
(x) the impact on, and any proposed improvements to, the public domain,
(xi) the impact on any special character area,
(xii) achieving appropriate interfaces at ground level between the building and the public domain,
(xiii) excellence and integration of landscape design.
Sydney Development Control Plan 2012 (DCP 2012) applies to the site. Relevantly, DCP 2012 provides that the height of development on the site is to be four storeys. The Building setback and alignment map referred to in cl 4.2.2.1 provides no specific setbacks for the site so the provisions in cl 4.2.2.1(1) apply and require that "setback and alignment must be consistent with adjoining buildings".
[5]
Public Submissions
The development application was notified in accordance with the requirements of DCP 2012. The Council received seven submissions which raised the following matters:
1. The proposal will increase traffic and parking issues. Particularly due to the proposal providing no on-site parking.
2. The lack of separation between the proposed apartments and the existing development (to the east) will have significant amenity impacts.
3. The proposal unreasonably exceeds the FSR control.
4. The proposal relies on the precedent of previous approvals.
5. The exclusively residential building does not satisfy the objectives of the mixed use zone.
6. The proposal provides inadequate setbacks to both the northern and southern ends of the site.
7. The proposal does not take advantage of the sites northern aspect.
8. The proposal will result in overshadowing of the adjoining properties open space.
9. The design generates overlooking and privacy impacts from the kitchen windows proposed in the southern façade.
10. The height of the proposed development is not consistent with the adjoining three storey buildings.
11. The application is incomplete and inaccurate.
The amended plans were also notified and the Council's Statement of Facts and Contentions (Exhibit 1) notes that no new issues were raised.
[6]
Expert Evidence
The Court heard expert planning evidence from Mr Anthony Betros, for the applicant, and Ms Aisling McGrath for the Council. In addition urban design evidence was tendered from Ms Gabrielle Morrish, for the applicant, and Ms Julia Pressick for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process a joint expert report was prepared which was tendered as Exhibit 3. A supplementary joint report, addressing the amended plans, was tendered as Exhibit 4.
I have reviewed the agreed evidence provided by experts to support the resolution of the contentions now agreed. I am satisfied that they appropriately consider the issues raised by the contentions, the submissions from the public and the appropriate planning controls, and I accept their conclusions.
[7]
Can the variation to the maximum height standard be supported?
The experts assisting the Court have reached agreement that the written request seeking a variation to the height standard should be upheld (Exhibit 4).
Following a review of the written request and the expert evidence, I am satisfied that the written request (Exhibit C) has adequately addressed the matters in cl 4.6(3)(a). The request adequately justifies that compliance with the standard is unreasonable or unnecessary on the basis that the objectives of the standard are achieved notwithstanding the variation. I am satisfied that on this basis the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
Further I am satisfied that the environmental planning grounds proffered by the applicant in the written request are sufficient to justify the contravention of the height control. Those grounds are broadly that:
1. the variation enables the inclusion of a pergola to the roof top which will enhance the amenity of the communal open space for residents by the provision of shade.
2. the variation in height caused by the lift overrun allows for the provision of equitable access to the roof top communal open space.
I am satisfied that the environmental planning grounds advanced are consistent with the decision of the Chief Judge in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ('Initial Action') at [24] and focus on the benefits arising from the variation.
Pursuant to cl 4.6(4)(ii) I am satisfied that the development is in the public interest as it is consistent with the objectives of the Height Standard (cl 4.4 LEP 2015) and the objectives of the zone. My reasoning is as follows:
1. The objectives of the Height standard are provided at paragraph [24]. I accept the reasoning of the applicant in Exhibit C that the height of the development is appropriate to the condition of the site and its context (objective a). The contextual compatibility of the proposed development was observable on the site inspection and I am satisfied that the non-compliant component (limited to the lift overrun and pergola) will not generate adverse visual bulk or amenity impacts. I concur with the experts that objective (b) of the standard is not directly applicable to the proposed development. Similarly there are no view impacts arising from the variation, and the development is outside the Green Square Town Centre making objective (c), (d) and (e) otiose.
2. In determining whether the development is consistent with the objectives of the standard I am satisfied that consistency means: 'agreeing or concordant', 'compatible', 'not self-imposed or self-contradictory' (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190).
3. In this case I am satisfied that the proposed development is compatible with the objectives of the height standard.
4. The objectives of the zone are provided at paragraph [22]. I accept that it can be reasonably argued that the development is consistent with the objective to provide a mix of compatible land uses, given the lack of any impacts arising from the uses proposed. Further I accept that the development is compatible with the achievement of integration of residential development in accessible locations to encourage walking and cycling as well as supporting the viability of nearby centres. I adopt the reasoning of the applicant in Exhibit C as follows:
"The proposed mixed use building is permissible in the B4 Mixed Use zone. The height variation is associated with the provision of access and cover to the rooftop communal area which positively contribute to the amenity of the building. The provision of commercial and residential accommodation and the associated height is compatible with the recently constructed residential terraces and apartments to the east, south and west of the subject site. The site is conveniently located to a host of services being immediately to the south of Alexandria Park and in close proximity to Green Square Station and the evolving town centre. The proposed height variation is thereby not considered to generate any inconsistency with the zone objectives."
(Exhibit C)
1. I am satisfied that the justification in the written request establishes that the development is compatible with the objectives of the B4 Mixed Use Zone.
Finally at cl 4.6(5) I am required to consider whether: the contravention of the standard raises any matters of significance for State or Regional planning (at subcl (a)) and if there is a public benefit in maintaining the standard (at subcl (b)). The Court's consideration of this concurrence is detailed in Initial Action at [29] as follows:
"On appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the Court Act. Nevertheless, the Court should still consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100; Wehbe v Pittwater Council at [41]."
I am satisfied in this case the matters raised in cl 4.6(5) are not a bar to upholding the variation request.
Consistent with the decision in Initial Action for there to be power to grant development consent where a development contravenes a development standard, cl 4.6(4)(a) requires that the Court be satisfied that:
The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)),
The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)),
The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and
The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)),
On the basis of the preceding I accept that each of these elements has been satisfied and the written request seeking a variation to the height standard should be upheld.
[8]
Can the variation to the FSR standard be supported?
In contrast to the height variation, the experts are not in agreement as to whether the FSR variation should be upheld by the Court.
The experts agree that the extent of variation to the FSR standard is 76.7% or 428sqm. .
The Council argues the FSR variation should not be upheld on the following grounds:
1. that the applicants reliance on the FSR breach approved at 117 Wyndham Street is not well founded on that basis that the original approval for that site complied with the FSR standard of 1.5:1 at the time of consent.
2. that the applicant's argument that a development of compliant FSR would be out of character with the context of the site is insufficient justification. Ms McGrath's evidence is:
"I maintain the opinion that through redesign and further design investigation that a part three, part four storey building presenting to Power Avenue could be achieved to 'bookend' the street, similar to that proposed without increased GFA. An example would be through the use of voids above the third level to achieve a 4th storey appearance. Alternatively increasing the floor to floor height of the ground floor commercial tenancy to 4.5m in accordance with Section 4.2.12 of the Sydney DCP and/ or providing increased floor to ceiling heights at the residential level" (Exhibit 4).
1. absence of amenity impacts is not sufficient justification for exceeding a key development standard.
2. approval would set an undesirable precedent for other nearby sites. Ms McGrath argues that "such a precedent would result in an increased density beyond that envisaged for the area and prescribed in LEP 2012, therefore the proposal is not in the public interest." (Exhibit 4)
3. that the variation is inconsistent with objective (b) of the FSR standard which seeks to "regulate the density of development, built form and land use intensity and control the generation of vehicle and pedestrian traffic". Ms McGrath argues that:
"The 77% exceedence (of) FSR and associated increased intensity of the use is not proportionate to that envisaged for the site of the surrounding area. The proposed development is at odds with the objective which seeks to strategically manage density."
(Exhibit 3)
The onus is on the Applicant to meet the tests of cl 4.6 in seeking flexibility to the maximum FSR standard at cl 4.4 of LEP 2015: Initial Action [25]. As detailed in the preceding the Applicant's written request seeking to justify the contravention of the development standard must adequately address both:
that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a));
that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).
The Court, on appeal, must form a positive opinion of satisfaction that the Applicant's written request has adequately addressed the matters in cl 4.6(3): Initial Action at [25].
[9]
Whether compliance with the development standard is unreasonable or unnecessary
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 at [42]-[51] ('Wehbe").
Namely, that:
1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1);
2. the underlying objective or purpose of the standard is not relevant to the development, so that compliance is unnecessary (Wehbe test 2);
3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3);
4. that the development has virtually been abandoned or destroyed by Council's own actions in departing from the standard (Wehbe test 4); or
5. that the zoning of the land is unreasonable or inappropriate so that the development standard is also unreasonable or unnecessary (Wehbe test 4).
In Initial Action, Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22]).
In this appeal, the Applicant has utilised a combination of the above tests, as well as locality and application specific arguments, to argue that compliance with the control is unreasonable and unnecessary in this case. The factors relied on by the Applicant are extracted below:
"• The proposed built form adopts appropriate setbacks, bulk, scale and height which are compatible with the other corner building at the eastern end of Power Avenue (117 Wyndham Street), as shown in the following photos [omitted]. The proposed built form (and its associated FSR) leads to a superior outcome in urban design terms, being a corner site, which warrants a stronger corner presentation, particularly in light of the 4-5 storey built form across Brennan Street to the west
• A proposal with a compliant FSR would appear as out of character with the scale of development in the immediate context, particularly for corner sites. A compliant FSR would be at least a storey below the 4-storey control would appear uncharacteristic for a corner site in this location, whereas the proposed scheme achieves an appropriate book-end relationship with the building on the corner of Power and Wyndham Streets (117 Wyndham Street). The proposed 4-storey presentation of the subject development is consistent with the scale of built form for the corresponding 'bookend' building and would bear a similar relationship with the terraces in between.
• It is noted that the corresponding 'bookend' building to the east (on the corner of Wyndham Street) contains a full 4-storey building with the rear of the ground floor section including 4 car spaces, which would be excluded from the numeric FSR but still contribute to building bulk. In contrast, the subject proposal does not provide parking at ground level in the corresponding location, as the subject proposal provides for bike and waste storage which are included in the FSR calculations.
• An FSR calculation has been conducted for the 4-storey building at the eastern end of the block (117 Wyndham Street), taken from the approved plans which were part of Attachment 1 of Council's assessment report for DA-2010/792. The method of calculation is based upon the site area if the corner site exclusive of the terraces (345sqm), noting that Council's approval under DA2011/1517 permitted land subdivision of the residential flat building from the terraces.
• The numeric FSR for the corner building is calculated to be 2.72:1 which is comparable to the proposed FSR of 2.67:1.
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• The combination of appropriate building footprint, height and setbacks establish a building envelope which is suitable for the site as it is harmonious with the character and scale of development as it presents to Power Avenue, whilst it also sits neatly alongside the built forms along Brennan Street.
• The proposed 4-storey scale of development is consistent with or subservient to the 4-5 storey scale of built form along Brennan Street, noting the corner building across Brennan Street to the west is four storeys with a recessed 5th storey.
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• The 4-storey scale of built form is consistent with that contained in the DCP. The combination of compliant height (in relation to storeys), appropriate building setbacks/footprint, compliant landscaping under the ADG, provision of a high level of internal amenity and lack of external amenity impacts, demonstrates that the proposed FSR is appropriate for the site and the standard is unreasonable and unnecessary in the circumstances.
• Compliant unit sizes, dimensions, balcony sizes and dimensions, living area widths, bedroom sizes and dimensions, storage, bike parking and light to the corridors also confirm that the proposed density can be accommodated on the subject site. ...
• The site is also in close proximity to Green Square Town Centre, public transport, shops and services, whilst also being opposite Alexandria Park. The proposed accommodation is therefore well serviced."
(Exhibit C)
Further, the Applicant relies Council's previous support of an exceedence of the FSR standard for the subject site under DA/2015/351 and DA/2013/383 (refer paragraph [14]. They argue Council's previous acceptance is further justification that compliance with the standard is unreasonable and unnecessary.
[10]
Submissions
Ms Duggan submits that the experts are in agreement that the subject site is a corner site and that a "that corner building has a stronger presence in the streetscape than buildings that aren't on the corner and that stronger presence is for the full extent of both street frontages" (Transcript 14 November 2018, page 9). In the context of the subject site it is her submission that the need for a stronger presence in urban design terms is emphasised by the existing development immediately across the road in Power Avenue at the corner of Brennan Street.
Ms Duggan argues that a development compliant with the FSR control would be more akin to a two and a half storey building and would not be compatible with the existing character, or the desired future character of that area: "if we were to comply with the floor space ratio control, you're going to get an incongruous and a building which is not harmonious either with the existing developments which are formed in the locality or the desired future character as expressed by those relatively recent approvals." (Transcript 14 November 2018, page 12).
Further Ms Duggan argues that the proposed floor space of the subject development is comparable to the floor space of the similar building at 117 Wyndham, therefore providing like-for-like intensity and density of development.
Ms Duggan submits that the experts are agreed, in the supplementary joint report, that the development has an appropriate presentation in the streetscape, provides for appropriate deep soil landscaping, and has appropriate setbacks, height, communal open space, internal amenity and no adverse impacts to the locality or adjoining neighbours.
On the basis of these arguments Ms Duggan argues that objective (d) of the FSR standard is satisfied.
In relation to objective (b) of the FSR standard Ms Duggan argues that the intent of the objective is to regulate density, which is achieved by the cl 4.6 variation process which is an integral part of LEP 2012, and to control the generation of vehicle and pedestrian traffic.
Ms Duggan argues that there is no evidence that the introduction of additional apartments on the subject site will result in unacceptable impacts to pedestrian and vehicle traffic. She acknowledges that the majority of the 21 submissions received by council in response to the application object to the existing lack of onsite parking and express concern that this will be exacerbated by the development. In her submissions Ms Duggan argues: "That is an intended consequence of the council limiting on street parking. The idea is you push them into buses, you push them into trains, you push them into car share". She argues that her position is supported by the comments from Council's Transport Planner who reviewed the application and comments:
"Zero onsite car parking space complies with the Sydney LEP and traffic reports suggest that the resident tenants can car share space if needed. The nearest car share pod is located 60 metres from the development. Lacking of car parking spaces should be compensated with additional bicycles."
(Exhibit 2)
Ms Duggan notes that in compliance with these comments additional bicycle parking has been conditioned.
Further Ms Duggan notes that in the Traffic Impact Statement prepared for the development, it provides an assessment of the travel patterns of residents in this particular locality. The Traffic Impact Statement notes that the majority of residents, 60% of them, travel on a mode alternative to private vehicle usage. (Exhibit A).
In relation to objective (c) of the FSR standard Ms Duggan argues relevantly that the application will provide: development contributions which are generated by, but are not limited to, the extra floor space; and contributions for infrastructure in Green Square through an additional payment of $88,302.50. Further she submits that the test is not whether or not there will be an impact. Ms Duggan argues that the test is whether or not the development is commensurate with existing and planned infrastructure. She states that: "There is no evidence that would support a finding there is going to be an impact at all, let alone an adverse impact, such that would warrant a finding of non‑compliance with the objectives on the evidence in this case. To the contrary, the evidence is wholly on our side of the argument, which is traffic, vehicles, public infrastructure are being met by the proposal." (Transcript 14 November 2018, page 14).
Ms Duggan argues that the Council's suggestion (at paragraph [48]) that the development contain voids, or relocate the communal open space to a lower level and maintain the boundary wall height cannot be accepted. Her argument is that the objects of the Act are a relevant consideration and the orderly and efficient development of land is one such objective. She states:
"Why would you build a building in a locality which is prime for accessibility to public transport, prime for accessibility to public open space and a development which, if developed to the extent proposed, has no impacts on anybody and provides for an appropriate degree of amenity internally when judged against the State government policy for amenity, would one suggest that there is a good reason why you would not permit 4.6 to work in the way it is intended, which is to provide the flexibility."
(Transcript 14 November 2018, page 15).
Finally Ms Duggan submits that the question for the Court is not what the best outcome is, but whether what is proposed is acceptable and the variation appropriately justified. She submits that by the abandonment of every other contention bar the request for a variation to FSR, the Council has acknowledged that this is an appropriate form of development.
In response to the Councils arguments' regarding the precedent effect of the application Ms Duggan relies on the Court's decision in Goldin and Anor v Minister for Transport [2002] NSWLEC 75. At paragraphs [31]-[34] of that judgment Ms Duggan argues it establishes that for precedent to be a relevant factor requires: "evidence that there are a body of applications effectively waiting in the wings,that are identical to the subject application that if approved, would produce an unacceptable outcome." (Transcript 14 November 2018, page 16).
Relying on the evidence of Ms Morrish, Ms Duggan submits that if such a body of applications does exist their approval would not result in an unacceptable outcome. Further there are particularities of the site that are not likely to be replicated: a corner site, private lane at the rear and an isolated allotment.
In the alternative Ms Reid argues that following the Court's leave for amended plans the issue in the proceedings is the adequacy of the cl 4.6 written request. Fundamentally whether the applicant has demonstrated that it is entitled to the flexibility provided under cl 4.6 to the FSR development standard in cl 4.4 of LEP 2012.
Ms Reid accepts that if the Court was to uphold the cl 4.6 request for a variation to the FSR standard that on the same argument the merits of the application would warrant its approval (Transcript 14 November 2018, page 17).
In determining whether the development is consistent with the objective (b) and (c) of the FSR standard Ms Reid argues the Court must take into account the nature of the Green Square community infrastructure and its value to the Green Square community. By reference to Exhibit 6: 'Development Guidelines: Providing Community Infrastructure in Green Square' (Development Guidelines) she notes that community infrastructure is defined as:
"Development of Green Square for the purposes of recreation areas, recreation facilities indoor and outdoor, public roads, drainage or flood mitigation works"
She notes that the intent of objective (c) is to provide an intensity of development that is commensurate with the capacity of existing and planned infrastructure.
Ms Reid acknowledges that the applicant has made an offer which, if the Court is minded to approve the application, the Council would accept, (Exhibit 7). She notes that in that offer, the additional FSR sought is 0.5:1 through the application of cl 6.14 of LEP 2012. The value of this additional FSR is calculated at $475 per square metre, provides a total value of $88,302.50 (Transcript 14 November 2018, page 19).
Relying on the Development Guidelines, Ms Reid argues that the infrastructure in Green Square has been planned for an expected population of 50,000 residents and 22,000 workers by 2030. The Development Guidelines acknowledge that community infrastructure needed in Green Square cannot be provided by the Council alone despite its access to developer contributions. Ms Reid argues:
"The council's stated guideline confirms the existing and planned infrastructure can meet the demands of an FSR of 1.5: 1 but not higher, and the council has a plan for what infrastructure is required to meet those demands. So we then have to look at flexibility in cl 4.6 and whether there is a reason to provide that flexibility and whether you could be satisfied that it would be unreasonable or unnecessary to comply with 1.5 :1 in the context of the capacity of existing and planned infrastructure."
(Transcript 14 November 2018, pg 22).
Further she argues that the written request provides scant discussion on justifying how the variation is consistent with objective (b) and (c) of the standard and relies on the previous approvals of Council to establish that 'sufficient infrastructure exists'. Ms Reid notes that those consents have now lapsed and relies on the decision of Robson J in Abrams (No.2) at [47] which states:
"The fact that these states of satisfaction have been met on one occasion is no indication that they'll be met on a future occasion in respect to the different application and the fact that the standard has not been applied previously does not alter the fact that cl 4.6 must be applied by the consent authority according to its terms in respect of each application."
Finally Ms Reid submits that the additional floor space sought by the applicant is not to provide larger units, for example through the increase of living rooms, but rather to increase the number of units on the site thereby increasing the density of people and the concordant impact on infrastructure.
[11]
Are there sufficient environmental planning grounds to justify contravening the development standard?
The Applicant's written request must adequately demonstrate that there are sufficient "environmental planning grounds" that justify the requested variation (cl 4.6(3)(b)). In Initial Action, at [24] Preston CJ observes that there are two ways in which the request must be sufficient. Firstly, "the environmental planning grounds advanced in the written request must be sufficient to justify contravening the development standard", and secondly: "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter (citations omitted)."
In considering the Applicant's case in support of the variation, the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds must be more than the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15].
The Applicant argues that there are sufficient environmental planning grounds to justify the variation on the following grounds:
"Assessment: The accompanying elevations and shadow diagrams demonstrate that there are no unreasonable overshadowing, view or privacy impacts to any dwellings surrounding the site.
Updated solar analysis confirms that the dwellings to the south will continue to enjoy greater than required (i.e more than 2 hours solar access to living and private open space areas between 9 am and 3pm). Internally, 66% of the living and private open space areas achieve 2 hours solar access between 9am and 3pm whilst 100% of the units achieve 2 hours solar access when extending the period to 4pm.
The proposed bulk and scale are less than that approved by Council on 2 occasions. Council were satisfied that there were no unreasonable external impacts associated with the density variation, as confirmed in the assessment of 2013 and 2015. The proposed internal and external amenity outcomes are consistent with that or better than that approved."
(Exhibit C)
[12]
Findings
Pursuant to cl 4.6(4)(a)(i) the consent authority on appeal must not grant consent for development that contravenes a development standard unless it is satisfied that, the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3). One of those matters is cl 4.6(3)(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
I have considered the written request prepared by ABC Planning Pty Ltd in November 2018 seeking to vary the height standard (Exhibit C). In particular I have given consideration to the environmental grounds proposed in the request to justify the variation. Noting that these grounds are reproduced at paragraph [80].
I find that the applicant's cl 4.6 written request does not satisfactorily demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard.
Consequent to these findings there is no power to grant consent to the development application and the appeal must fail.
[13]
Orders:
The Court orders that:
1. The applicant is granted leave to rely on the plans contained in Exhibit B in the proceedings;
2. The applicant is to pay the Respondents costs thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as may be agreed or assessed;
3. The appeal is dismissed;
4. Development Application No. D/2017/1809 for demolition of the existing commercial building on the site and construction of a new four storey residential flat building containing 14 units and associated bicycle parking and waste storage is refused;
5. The exhibits are returned with the exception of Exhibits A, C, and 1.
…………….
D M Dickson
Commissioner of the Court
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Decision last updated: 17 December 2018