Abrams v The Council of the City of Sydney

Variations to Development Standards

1. The approach to be taken by the Court to cl 4.6 in the Sydney Local Environmental Plan 2012 (LEP 2012) is summarised by Preston CJ in RebelMH v North Sydney Council at [22]-[24] as follows: "[22] The permissive power in cl 4.6(2) to grant consent to development that contravenes a development standard is subject to conditions that must be met before the power can be exercised. First, cl 4.6(3) requires the consent authority to consider a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating both of the matters in cl 4.6(3)(a) and (b), being: "(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." [23] Secondly, cl 4.6(4) requires the consent authority to be satisfied of both of the matters in cl 4.6(4)(a)(i) and (ii), being: "(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" [24] Only if the consent authority meets these requirements in cl 4.6(3) and (4) will the power in cl 4.6(2) to grant consent to development that contravenes the development standard be enlivened."
2. Therefore, despite the agreement of the experts that the height variation is acceptable, I must be satisfied of the precondition in cl 4.6 of LEP 2012 to allow consent to be granted. As such, I will address the requested height variation first.

The variation to the maximum height standard

1. The experts assisting the Court have reached an agreement that the written request seeking a variation to the height standard should be upheld (Exhibit 4).
2. The written request that formed the basis of the planning experts agreement has been replaced, with the leave of the Court with a cl 4.6 request - Height prepared by ABC Planning Pty Ltd dated June 2019 (Ex D) ('the height written request'). This later version of the written variation request, been prepared with changes highlighted, and is the relevant request for my determination.
3. 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").
4. 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 the Council's 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 5).
5. In Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 8 (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] of Initial Action).
6. The height written request argues that compliance with the height standard is unreasonable or unnecessary in the circumstances on broadly the following grounds: 1. Visual Bulk: the height variation is limited to a 100mm component of the lift overrun which is recessed from the perimeter of the building and will not generate any adverse or unreasonable visual bulk impacts to the public domain, nor to private properties adjacent or in the vicinity of the site. The minor breach arising from the pergola is not discernible from the public domain and will provide amenity for the residents. 2. Access to communal open space: the lift provides equitable and convenient access for each of the units to the communal rooftop area. The variation contributes to the amenity of the proposal in a positive manner. Whilst access to the rooftop could be provided in a height compliant manner by a chair lift, the request argues that "the lift access provides for more efficient access and therefore results in a better planning outcome, considered the lack of impact associated with the height non-compliance" (Ex D). 3. Absence of impacts: The height variation is not responsible for any adverse or unreasonable overshadowing, privacy or view loss impacts. 4. Streetscape: The height variation is limited to a minor portion of the building, recessed within the site and will not be readily perceptible from the public domain. 5. Urban Design: the written request relies on the evidence of Ms Morrish which concludes that: "Given the majority of the building is well below the maximum height and that the corner building on the other side of Brennan St is 5 storeys with a strong roof element I consider that the small height non-compliance is acceptable and reasonable" (Ex D).
7. In addition to these grounds, the height written request argues that the proposed achieves the objectives of the development standard, despite the non-compliance (Wehbe test 1).
8. The height standard objectives (cl 4.3 LEP 2012) 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: to ensure the amenity of the public domain by restricting taller buildings to only part of the site; and to ensure that the built form contributes to the physical definition of the street network and public spaces.
9. Objective (e) of the standard is not directly relevant as the subject site is located outside Green Square.
10. Following a review of the height written request and the expert evidence, I am satisfied that the height written request has adequately addressed the matters in cl 4.6(3)(a). I find that 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 (refer to my reasoning at paragraph [23]). Further, I am satisfied that the additional grounds at paragraph [16] collectively demonstrate compliance with the standard is unnecessary in this instance. In conclusion, I am satisfied on these bases that the written request adequately demonstrates the test in cl 4.6(3)(a) of LEP 2012.
11. In addressing cl 4.6(3)(b), the Applicant's height written request argues that there are sufficient environmental planning grounds to justify the variation. Those grounds are broadly: 1. the grounds summarised at paragraph [16]; and that 2. the variation enables the inclusion of a pergola to the rooftop which will enhance the amenity of the communal open space for residents by the provision of shade. 3. the height variation does not impact solar access achieved by the existing residential properties to the east or the north of the subject property. 4. that the height exceedance does not result in a view impact or generate any unreasonable privacy impacts.
12. 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. Relevantly in this instance, the variation is also minor (Fast Buck$ v Byron Shire Council (1999) LGERA 91 at [9]). I am satisfied that the environmental planning grounds advanced are consistent with the decision of the Chief Judge in Initial Action at [24] and focus on the benefits arising from the variation.
13. 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. I accept the arguments put by the applicant in the height written request 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. In regards to the objectives of the B4 Mixed Use zone, 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 height written request 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." (Ex D) 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.
14. 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]."
15. I am satisfied in this case the matters raised in cl 4.6(5) are not a bar to upholding the variation request.
16. Consistent with the decision in Initial Action for there to be the power to grant development consent where a development contravenes a development standard, cl 4.6(4)(a) requires that the Court be satisfied that: 1. 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), 2. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) 3. The consent authority is satisfied that: 1. The written request has adequately addressed the matters in cl. 4.6(3) (cl 4.6(4)(a)(i)); 2. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)); and 3. The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).
17. Based on the preceding, I accept that each of these elements has been satisfied. I find that the written request seeking a variation to the height standard should be upheld.

The variation to the FSR standard

1. In contrast to the height variation, the experts are not in agreement as to whether the FSR variation should be upheld by the Court.
2. The written request that formed the basis of the planning experts evidence has been replaced with the leave of the court with a Clause 4.6 request - FSR prepared by ABC Planning Pty Ltd dated June 2019 (Ex D) ('the FSR written request'). This later version of the written variation request has been prepared, with changes highlighted, and is the relevant request for my determination.
3. The experts agree that the extent of variation to the FSR standard is 76.7% or 428sqm (Ex 4).
4. Despite the updated FSR written request, the Council maintains that the FSR written request should not be upheld on the following grounds (Transcript 24/7/19, p 3): 1. that the applicant's 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 compliant with the FSR control 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" (Ex 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." (Ex 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% exceedance (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." (Ex 3)
5. 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 at [25]. As detailed in the preceding the Applicant's the FSR written request seeking to justify the contravention of the development standard must firstly 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)).

1. The Court, on appeal, must form a positive opinion of satisfaction that the Applicant's FSR written request has adequately addressed the matters in cl 4.6(3): Initial Action at [25].

Whether compliance with the development standard is unreasonable or unnecessary

1. The tests detailed in Wehbe are summarised at paragraph [14]. They equally apply to the FSR written request.
2. 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 from the FSR written request below: "1. 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, 2. 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. 3. 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. 4. 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. 5. 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. … 6. 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. 7. 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. 8. The floor plans and sketches of the building elevations include substantial articulation which contributes to a compatible visual outcome with the character of the surrounding buildings. 9. The addition of landscaping along the street frontages (partial along Brennan Street) provides for a cohesive relationship with the character of the front setbacks along Power Avenue, particularly for the corner buildings in this section of Power Avenue. 10. 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. 11. 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. … 12. 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." (Ex D)
3. Further, the applicant relies on the evidence of Ms Morrish, urban design expert, whose evidence focuses on "whether the massing, form and amenity of the scheme is appropriate and acceptable in the context and achieves the desired future character sought for the area" (Ex D). In summary, her evidence argues that:

• the proposed building is responsive to the 3-5 storey, but predominately 4 storey scale of the existing context and provides a building that is consistent with the street edge perimeter block form envisaged by the Sydney Development Control Plan 2012 (DCP 2012).
• the proposed building provides a strong corner expression reinforcing the site location and responding to a taller corner building opposite.
• the setback proposed to Power Avenue responds to the setback of the corner of the adjacent building (near the north corner of the block) and allows greater deep soil planting along Power Avenue.
• the amended plans provide "improved amenity over both previous approvals and the plans before the Court by including a slot for light and air to the circulation corridors on the two mid floors as well as the ground and top level with reasonable solar access and cross ventilation given the site and constraints" (Ex D).
• the ground level is activated and 'balances' the other corner and improves activity opposite Alexandria Park.
• the site has unique characteristics including that it is a remnant site on a corner surrounded by completed developments and opposite a public park. These unique, site-specific, characteristics reduce the precedent effect of any approval with an FSR variation.

1. In addition, the Applicant relies on the previous support of Council for the exceedance of FSR on the site under DA/2015/351 and DA/2013/383 (refer paragraph as further justification that compliance is unreasonable and unnecessary.
2. Finally, the FSR written request argues the proposed development achieves the objectives of the development standard (cl 4.4 LEP 2012) despite the non-compliance (Wehbe test 1). The relevant FSR objectives 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 control the generation of vehicle and pedestrian traffic, (c) to provide the 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.
3. The FSR written request (Ex D) incorrectly reproduces objective (d) of the FSR standard, transposing subcl (d) of the height standard instead.
4. Notwithstanding this error, when read as a whole, the FSR written request argues of the objectives of the standard are met notwithstanding the variation on the following grounds:

• the grounds detailed at paragraph [35];
• the development proposed assists in meeting the anticipated development needs in a well located and serviced site. The extent of additional floor space sought does not generate an inconsistency with objective (a) of the standard and flexibility is warranted;
• the density is appropriate as it's built form expression is suited to its context and the subject site;
• DCP 2012 encourages the use of sustainable transport options and the proposal is consistent with this policy by the provision of bike parking and nil vehicle parking.
• the site enjoys pedestrian access to parks, shops and public transport (including Green Square rail station);
• in accordance with Council policy, an affordable housing contribution will be made as part of the implementation of the proposal;
• in approving two previous developments on the subject site the Council formed a view that sufficient infrastructure existed for those developments. Both of the previous approvals included a greater variation to the FSR control (at 2.4:1) and more dwellings or units than is sought in the current proposal; and
• the siting, height, bulk and scale of the proposed development minimises adverse impacts on the amenity of the locality as demonstrated by the retention of solar access and the improvement of privacy to the development to the south.

Submissions

1. Ms Duggan submits that the experts are in agreement that the subject site is a corner site and that a "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.
2. 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).
3. 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.
4. 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.
5. Based on these arguments, Ms Duggan argues that objective (d) of the FSR standard is satisfied.
6. In relation to objective (b) of the FSR standard, Ms Duggan argues that the objective intends 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.
7. 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 the 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 the 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. Lack of car parking spaces should be compensated with additional bicycles." (Ex2)
8. Ms Duggan notes that in compliance with these comments additional bicycle parking has been conditioned.
9. 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. (Ex A).
10. 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).
11. Ms Duggan argues that the Council's suggestion (at paragraph [31]) that the development contain voids, or relocate the communal open space to a lower level and maintain the boundary wall height cannot be accepted. She argues 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).
12. 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.
13. 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) 121 LGERA 101; [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).
14. 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.
15. In addition to adopting her previous submissions (detailed in the preceding paragraphs) at the remitter hearing, Ms Duggan made further submissions in relation to the Courts consideration of objective (b) of the FSR standard. In particular, Ms Duggan emphasises how similar the evidence of the Council's planning expert and the arguments of the Council are in this matter as in Baron Corp v City of Sydney. Ms Duggan emphasises that much of the evidence given by Ms McGrath in this matter is "almost identically the same comments that Ms McGrath made in this case in relation to why the [clause] 4.6 should not be upheld" (Transcript 24 July 2019, page 5).
16. Ms McGrath's planning evidence and the Commissioner's consideration of it is detailed at paragraphs [54]-[57] of the original Baron Corp decision: Baron Corporation Pty Limited v Council of the City of Sydney [2018] NSWLEC 1552.
17. Relevant to these proceedings Ms Duggan submits that the findings of Preston CJ in Baron Corp v City of Sydney are relevant to the Court's treatment of the planning evidence and Ms McGrath's reasoning in assessing if the requested FSR variation is consistent with the objective (b) of the FSR standard. In particular, Ms Duggan argues the findings of the Court at paragraphs [48]-[52] and [56]-[57] are relevant to the subject proceedings. They are reproduced below: "[48] I find the Commissioner did misdirect herself in finding that the written request under cl 4.6 had not demonstrated that objective (b) of the development standard in cl 4.4(2) of SLEP is achieved, notwithstanding the development's noncompliance with the development standard. The Commissioner misconstrued objective (b) and asked the wrong question regarding whether objective (b) of the development standard is achieved, notwithstanding the development's noncompliance with the development standard. These errors on questions of law are illustrated by the third to fifth errors raised by Baron in its submissions. I do not find that the first and second errors raised by Baron in its submissions are errors on questions of law for the reasons advanced by the Council in its submissions. [49] The central problem in the approach of the Commissioner to objective (b) of the development standard is the Commissioner's elevation of the regulation that is the subject of objective (b) to be an end in itself. Objective (b) is explanatory of the central purpose of the floor space ratio development standard to regulate the density of development, built form and land use intensity of buildings on land in the local area. By fixing different maximum floor space ratios for buildings on land in different areas by means of the Floor Space Ratio Map, the clause does regulate the density of development, built form and land use intensity. But the regulation of the density of development, built form and land use intensity is not the end to be achieved by the clause, rather it is a means to achieve the goals identified in objective (a) "to provide sufficient floor space to meet anticipated development needs for the foreseeable future", objective (c) "to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure" and objective (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", and the particular goal in object (b) "to control the generation of vehicle and pedestrian traffic". [50] The Commissioner, however, viewed "the regulation sought to be achieved by the FSR development standard" as being the end in itself. This is evident from the Commissioner's choice of language in the critical paragraph [60] of her reasons. The Commissioner, immediately after quoting objective (b), identifies that the objective "is therefore concerned with the 'regulation' of density, built form and land use intensity (and its impact on vehicle and pedestrian traffic)". The Commissioner's use of the quotation marks around the word "regulation" emphasises her focus on regulation. The Commissioner applies this approach focused on "regulation" to the applicant's written request seeking to justify the contravention of the development standard. The Commissioner finds that "there is nothing in the request that demonstrates how the land use intensity of the proposed altered development is consistent with the regulation sought to be achieved by the FSR development standard." [51] The Commissioner's adoption of the Council planner's evidence also reveals that the Commissioner approached her task by focusing on regulation. The Council planner, Ms McGrath, had given evidence that she construed the FSR standard as being "in place to strategically manage densities that correspond with the capacity of existing and planned infrastructure" (as found by the Commissioner at [39]). That evidence echoes objective (c) of the FSR development standard, "to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure". The Commissioner, however, deployed this evidence of Ms McGrath in aid of the Commissioner's finding on objective (b). [52] Ms McGrath also gave evidence that "allowing an exceedance to the FSR in this manner would set an undesirable precedent in the area." Ms McGrath opined that "it is in the public benefit to maintain the FSR standard, thereby prohibiting incremental increases to the envisaged density such as what would occur through the proposed development" (as found by the Commissioner in [39] of the judgment). This evidence was not based in any particular objective of the development standard in cl 4.4, but instead reflected Ms McGrath's opinion that it was not in the public benefit for exceptions to the FSR development standard to ever be made. … [56] This approach of the Commissioner involved misconstruction of the objectives of the development standard, particularly objective (b), and caused the Commissioner to ask the wrong question. I reject the Council's submission that the findings of the Commissioner in [60] of the judgment are merely findings of fact and do not reveal misdirection as to law. Of course, the findings are framed as findings of fact, such as "I am not satisfied that the request demonstrates…" or "there is nothing in the request that demonstrates…", but the terms in which the findings are expressed reveal the erroneous approach to the task taken by the Commissioner. [57] The Commissioner sought to ask whether the written request under cl 4.6 demonstrated that objective (b) of the development standard in cl 4.4.(2) is achieved, notwithstanding the development's noncompliance with the development standard. But the Commissioner did this by asking whether the written request demonstrated that the regulation or strategic management of the density of development, built form and land use intensity is maintained, notwithstanding the noncompliance. This was to ask the wrong question. It was a question that could never be answered in the affirmative. As Baron submitted, a written request seeking to justify the contravention of the floor space ratio development standard by one building could never establish that the regulation or strategic management of the density of development, built form and land use intensity of all buildings in the local area has been maintained."
18. Ms Duggan argues that the Council's arguments concerning the proposed development not meeting objective (b) and (c) of the FSR standard should not be preferred by the Court on the same grounds detailed by his Honour in the preceding extract of Baron Corp v City of Sydney.
19. 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.
20. 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).
21. 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"
22. 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.
23. Ms Reid acknowledges that the applicant has made an offer which, if the Court is minded to approve the application, the Council would accept, (Ex 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).
24. 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, page 22).
25. Further, she argues that the written request provides a 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 v The Council of the City of Sydney (No 2) [2018] NSWLEC 85 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."
26. 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.
27. In addition to adopting her previous submissions (detailed in the preceding paragraphs) at the remitter hearing, Ms Reid reemphasised that in Council's view the FSR written request, whilst updated, still fails to justify the requested variation to the intensity and density of development. On this basis, Council maintains its position that the Applicant has not established that compliance with the FSR standard is unreasonable or unnecessary.

Findings

1. Following a review of the FSR written request, the expert evidence and the submissions I am satisfied that the FSR written request has adequately addressed the matters in cl. 4.6(3)(a). My reasoning is as follows.
2. I am satisfied on, and accept, the grounds argued by the applicant (and summarised at paragraph [36]) that it is established that compliance with the FSR standard is unreasonable or unnecessary in the circumstances of the case.
3. For reasons detailed later in the judgement I am not persuaded by the arguments advanced by the applicant at paragraph [35(2)], broadly that a proposal with a compliant FSR would: appear out of character and scale with the immediate context, particularly as a corner site; and would be at least a storey below the 4-storey control; and would as a result appear uncharacteristic. Nonetheless, I am satisfied the remaining grounds argued suffice.
4. Further, I accept the submission of Ms Duggan that the decision of the Court in Baron Corp v City of Sydney should be given weight in the consideration of the Council's expert evidence and the consideration of objective (b) of the FSR standard. I accept her submissions as detailed at [46] - [47] and [57]- [58].
5. Finally, in relation to objective (c) of the height I am not persuaded by the submissions of Ms Reid that the proposed development is not compatible with the achievement of providing for an intensity of development that is commensurate with the capacity of existing and planned infrastructure on the grounds she argues. In reaching this conclusion I am persuaded by the findings of his Honour at [49] of Baron Corp v City of Sydney that Ms Reid's submissions seek to elevate objective (c) to an end in and of itself.
6. On the preceding grounds, I find that I can be satisfied that the applicant's written request adequately demonstrates the matters in cl 4.6(3)(a) of the LEP 2012.

Are there sufficient environmental planning grounds to justify contravening the development standard?

1. 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)."
2. 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 (Four2Five Pty Ltd v Ashfield Council) at [15].
3. In the FSR written request the Applicant argues that there are sufficient environmental planning grounds to justify the variation on the following grounds: "Assessment: it is considered that there are sufficient environmental planning grounds to justify the FSR development standard. It is noted that the response provided to clause 4.6(3)(a) above is adopted and relied upon for the purposes of this response to clause 4.6(3)(b), in addition to the following points: 1. The accompanying elevations and shadow diagrams demonstrate that there are no unreasonable overshadowing, view or privacy impacts to any dwellings surrounding the site. More than 2 hours solar access is retained to the living and private open space areas of the existing dwellings to the south. The additional FSR thereby does not compromise the amenity of the dwellings to the south whilst no other properties are affected. The nil provision of openings capable of overlooking the southern neighbour protects the privacy of the southern neighbour and also represents a reduction of overlooking impacts from that which exists and that previously approved on two occasions. 2. It is considered that a building with a compliant FSR may not necessarily provide for greater solar access or amenity to the neighbouring building to the south as the built form could remain as proposed, but with either a series of voids or an internal courtyard. It is considered that the proposed height is appropriate for the site noting its compatibility with the scale of buildings in the vicinity of the site, most notably the corresponding corner building to the east. The additional FSR is therefore difficult to quantify given the suitability of the height on the site. Removal of FSR for voids and or an internal courtyard would reduce the yield of apartments on the site but, given the well-serviced nature of the site, such approach would not represent orderly and economic use of the land. 3. 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. Given such relationship, the additional FSR (if it were considered to be on the upper level) is not warranted to be removed. The following excerpt of the western elevation and the photos of the Brennan Street streetscape confirm that the proposed scale is appropriate and a reduction of visible bulk/FSR is unwarranted: [photos omitted] 4. The additional FSR does not generate any adverse view impacts. 5. 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. 6. The additional FSR is able to be accommodated on the subject site whilst providing a compliant degree of deep soil planting as required by the ADG. 7. The additional FSR does not generate any traffic or parking impacts as no parking is included in the proposal which encourages the use of public transport and alternative transport options. Based on the above points, it is considered that there are sufficient environmental planning grounds to permit the FSR variation in this instances." (Ex D)

Submissions

1. Ms Duggan's principal submissions are detailed in paragraphs [41]-[58]. They overlap with the considerations of the environmental planning grounds advanced by the FSR written request.
2. Ms Reid maintains that it is Council's view that the FSR written request 'continues to fail to establish why the environmental planning grounds identified by the applicant, either in written form, in the evidence or in the submissions, justify the contravention of the standard' (Transcript 24 July 2019 p. 13). Further, she states that: "The Council does not say that the benefits of a development, and this is addressed in Initial Action and Baron Corp, say that you could never vary the FSR standard, but those benefits relate to the built form, they do not relate to the intensity and density of the development and there is certainly no justification as it relates to that aspect of the standard." Transcript 24 July 2019 p. 14

Findings

1. 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.
2. In Baron Corp v City of Sydney at [80] his honour states the following in relation to this test: "To recognise that a consent authority might need to form its own view about whether the matters in cl 4.6(3) have been achieved, in order to discharge its responsibility to determine whether it is satisfied that the applicant's written request has adequately addressed the matter required to be demonstrated by cl 4.6(3), is not to apply the wrong test. The test remains that set by the terms of cl 4.6(4)(a)(i). It simply recognises that application of that test might involve the consent authority forming its own view about the matters in cl 4.6(3). I read Basten JA's remarks in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [21]-[23] as making a similar point."
3. I have considered the written request to vary the FSR standard (Exhibit D). In particular, I have considered the environmental grounds proposed in the request to justify the variation. Noting that these grounds are reproduced at [76]. I am satisfied that the environmental planning grounds stated are, by their nature, "environmental planning grounds" as understood by the Court in Four2Five Pty Ltd v Ashfield Council at [26]. However, I am not satisfied that the written request has demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard. My reasoning follows.
4. The written request to vary the FSR standard lacks clarity as to how the variation of the floor space standard is concurrent with the benefits argued. I am not persuaded that the grounds relied on to seek to justify the contravention of the FSR standard are not benefits that arise from the carrying out of the development as a whole: Initial Action at [24].
5. I am not satisfied that written request adequately demonstrates that the achievement of compliance with the relevant planning controls and standards, be they in LEP 2012, DCP 2012 or the Apartment Design Guide under State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development are sufficient environmental planning grounds to warrant the variation to FSR standard sought by the application. Further, I note that the amended design before the Court relies on a variation to the solar numerical control in the ADG as it does not achieve 70% of apartments receiving the standard for solar access. In the proposed development four units receive less than the standard of two hours sunlight between 9am and 3pm on June 21 (Ex B).
6. The reduction in privacy impacts to the property to the south of the proposed development over the existing commercial building is meritorious but I am not satisfied that written request adequately demonstrates how this benefit arises from the variation. A similar argument is put in relation to the maintenance of solar access to these properties. Further, even if a link between these benefits and the additional floor space was demonstrated in the written request I am not persuaded this benefit is a sufficient environmental planning ground to justify the extent of the variation to the FSR standard sought by the application.
7. I have given consideration to the urban design evidence of the experts and in particular the evidence of Ms Morrish in relation to: the proposed architectural treatment of the corner of the building as it presents to Power Avenue and Brennan Street, the form of the building as reinforcing the street edge, the building form in the context of Power Street and its frontage to Alexandria Park and the other matters detailed at paragraph [36]. The applicant argues that these positive urban design attributes of the proposal form part of the environmental planning grounds on which the variation is justified. I am not so persuaded.
8. Whilst these urban design attributes of the proposal are a benefit of the proposed development, I am not satisfied that the written request, the evidence or the submissions adequately demonstrate that they justify the contravention of the FSR standard. In this regard, I accept Ms McGrath's evidence, as detailed at paragraph [31(2)] that a number of those urban design attributes could equally apply to a development with a compliant FSR. I do not read Ms Morrish's evidence as arguing that a variation is necessary to achieve the positive urban design outcome, rather she advances that the variation is required to provide an incentive for redevelopment. In the joint report, her evidence is only that "to reduce the FSR to the maximum of 1.5:1 is likely to result in the existing building not be redeveloped as it is equivalent to the maximum FSR. There would be no incentive to redevelop and the four storey street wall character of the area would not be realised for this site' (Exhibit 3). The orderly and economic use of the land is also tangentially referred to by Mr Betross in the FSR written request which states: Removal of the FSR for voids and or an internal courtyard would reduce the yield of apartments on the site; such an approach would not represent orderly and economic use of the land" (Ex D). I note that this argument is not further advanced in the FSR written request or substantiated by evidence in the proceedings. I am not persuaded the urban design attributes advanced are a sufficient environmental planning ground to justify the extent of the variation to the FSR standard sought by the application. Further, I am not persuaded that the applicant has established in argument or evidence that any additional yield or incentive is a sufficient environmental planning ground to warrant the variation.
9. Finally, when looked at collectively I am not satisfied that the environmental planning grounds advanced by the applicant in the FSR written request are sufficient grounds to justify the variation contravening the development standard.
10. As a result of the preceding, I am not able to reach the state of satisfaction required by cl 4.6(4)(a)(i), namely that the applicant's written request has adequately addressed cl 4.6(3)(b). As a result I have no power to grant consent to the application.

Orders:

1. The Court orders that: 1. The appeal is dismissed; 2. Development Application No. D/2017/1809 for the 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. ……………. D M Dickson Commissioner of the Court 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: 07 August 2019