[2019] NSWLEC 61
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256
[2018] NSWLEC 118
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446
Source
Original judgment source is linked above.
Catchwords
[2019] NSWLEC 61
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256[2018] NSWLEC 118
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446
Judgment (8 paragraphs)
[1]
The applicant's written request to contravene the height of buildings development standard
The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard
The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (Wehbe) and repeated in Initial Action [17]-[21]:
1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
4. the development standard has been abandoned by the council;
5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).
The applicant's written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.
The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).
I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3).
The applicant's written request notes that there is an existing swimming pool on the site and the maximum height of the proposal is measured from the bottom of the swimming pool. The maximum height of the proposal above ground level adjacent to the swimming pool is 12.15m. The historic excavation of the swimming pool is an environmental planning ground within the meaning identified by Preston CJ in Initial Action at [23] because it is a unique circumstance of the site that results in an increased numerical value for the development standard in a discrete location above the site. The excavation of the swimming pool is not, however, sufficient to justify the exceedance of the height of buildings development standard because the height of the proposal above ground level adjacent to the swimming pool also exceeds the height of buildings development standard.
The applicant's written request defends the exceedance of the height of buildings development standard as a justified response to the provision of two additional affordable housing units and the accommodation of the building envelope as a result of the FSR bonus to facilitate the effective delivery of new affordable rental housing. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by Preston CJ in Initial Action at [23].
[2]
Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone
The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).
[3]
Desired future character is not determined by the development standards that control building envelopes for an area
The desired future character of any area cannot be determined by the applicable development standards for height and FSR alone.
The NSW planning regime includes various schemes to incentivise particular development by providing additional GFA above the otherwise prescribed development standards that determine a building envelope for a given site. See, for example (and unrelated to this appeal), the Part 6 Local provisions - height and floor space under the Sydney Local Environmental Plan 2012 which operates to incentivise certain development and to transfer development potential from a heritage building to another site. EPIs incentivise the provision of particular development and services as a means of achieving policy goals and these provisions can operate to increase GFA for particular development, subject to a range of requirements. Such provisions in State Environmental Planning Policies operate concurrently with local provisions (subject to s 3.28 of the EPA Act) that determine the building envelope for an individual site. SEPP ARH incentivises the provision by the private sector of in-fill affordable housing by providing additional GFA above the otherwise applicable development standards that determine the building envelope for a particular site, subject to a requirement that the proposed development is compatible with the character of the local area.
The presumption that the development standards that control building envelopes determine the desired future character of an area is based upon a false notion that those building envelopes represent, or are derived from, a fixed three-dimensional masterplan of building envelopes for the area and the realisation of that masterplan will achieve the desired urban character. Although development standards for building envelopes are mostly based on comprehensive studies and strategic plans, they are frequently generic, as demonstrated by the large areas of a single colour representing a single standard on Local Environmental Plan maps, and they reflect the zoning map. As generic standards, they do not necessarily account for existing and approved development, site amalgamations, the location of heritage items or the nuances of an individual site. Nor can they account for provisions under other EPIs that incentivise particular development with GFA bonuses or other mechanisms that intensify development. All these factors push the ultimate contest for evaluating and determining a building envelope for a specific use on a site to the development application stage. The application of the compulsory provisions of cl 4.6 further erodes the relationship between numeric standards for building envelopes and the realised built character of a locality (see Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (SJD DB2) at [62]-[63]). For these reasons, the desired future character of an area is not defined and fixed by the development standards that determine the building envelope for a site. Development standards that determine building envelopes for a locality can only contribute to shaping the character of that locality (SJD DB2 at [53]-[54] and [59]-[60]).
[4]
The size and scale of the approved development and the proposal is compatible with the desired future character of the locality
The fundamental issue separating the parties is whether or not the proposal is consistent with the first objective of the height of buildings development standard, to ensure that the size and scale of development is compatible with the desired future character of the locality.
The "desired future character of the locality" at cl 4.3(1)(a) is undefined by LEP 2012. As an objective of the height of buildings development standard, the desired future character of the locality is intended to establish building heights for development that is compatible with that character. The desired future character of the locality can be evaluated by reference to matters other than the development standards that determine the building envelope for the site, including the existing development that forms the built context of the site. I accept the applicant's experts' evidence that there is a unique character in the vicinity of the site created by the existing four storey residential flat buildings, including the four storey residential flat building adjoining the site to the north. The existing four storey residential flat buildings contribute to a higher density character for the sub-precinct identified by the applicant's experts in the vicinity of the site.
I accept the agreed evidence of the experts that the proposal complies with the building separation and setback requirements in the ADG and Chapter C2 of the Randwick Development Control Plan 2013 (DCP 2013). I accept the agreement of the experts that the proposal presents as a three storey residential flat building when viewed from the public domain along Carrington Road. I accept the evidence of the applicant's experts that the proposal has been designed as a contemporary mansard roof structure and positioned towards the rear of the approved development with adequate setbacks so as to be sufficiently responsive to the built form context. I am satisfied that the proposal is compatible with the desired future character of the locality.
The Council contends that the proposal is not compatible with the desired future character envisaged for the area as established by the planning controls contained in LEP 2012. The desired future character of an area is not defined and fixed by development standards for height of buildings and FSR. For the reasons set out above, development standards for height of buildings and FSR do not envisage the desired future character of a locality because they do not, alone, determine the realised building envelopes for that locality.
The Council contends that approval of the proposal would set an undesirable planning precedent, noting that the area is identified as an area undergoing transition. This aspect of the Council's contention rests on the premise that the height of buildings and FSR development standards for the locality will alone determine the realised building envelopes for the locality and an exceedance of the height of buildings development standard on this site would justify the exceedance of the height of buildings development standard for another application. For the reasons set out above, that is not the case. The exceedance of the height of buildings development standard by the proposal is justified by the environmental planning grounds for this site and this development, being the accommodation of the additional GFA within the building envelope for the provision of in-fill affordable housing, the lack of amenity impacts on adjoining development and the existing character established by the developments that form the context of the site; and because the proposal is consistent with the zone objectives and height of buildings development standard objectives. Each future application for development consent in the locality must be evaluated on its own merits pursuant to cl 4.15 of the EPA Act.
[5]
The amenity impacts of the proposal are acceptable
I accept the agreement of the experts that the proposal does not result in visual or acoustic privacy impacts on adjoining development following the addition of planter boxes on the northern and southern sides of the proposed external terrace and that the proposal does not result in the loss of views from surrounding development.
The experts agreed that the proposal results in additional overshadowing of the northern elevation of the adjoining development to the south on the winter solstice. I accept the agreement of the experts that the overshadowing of the northern façade of the adjoining development is acceptable, because the overshadowing is limited to secondary windows in living rooms, bedrooms and bathrooms and because the solar access requirements in the ADG and Chapter C2 of DCP 2013 on the winter solstice for the adjoining development to the south are achieved.
On the basis of all of the evidence before me, I am satisfied that any amenity impacts of the proposal are acceptable.
[6]
Consideration
I am satisfied that the proposal is consistent with the SEPP 65 design quality principles. The only particular of the contention regarding design quality makes reference to the advice obtained from the Council's Design Review Panel (Ex 2, tab B). The advice of the Council's Design Review Panel was based on an earlier iteration of the proposal. The experts, in their joint report (Ex 3) agreed that the proposal, as amended, provides a superior outcome when compared to the earlier iteration of the proposal. I accept the agreement of the experts.
I am satisfied that the proposal is compatible with the character of the local area for the reasons set out at [46] and [47].
[7]
Orders
The orders of the Court are:
1. The applicant is granted leave to amend the application to rely on the amended architectural drawings listed at Condition 1 of the conditions of consent at Annexure A and the amended written request seeking to justify the contravention of the height of buildings development standard.
2. The appeal is upheld.
3. Development Application No. 108/2020 for alterations and additions to an approved residential flat building including the provision of affordable rental housing units, construction of an additional storey, reconfiguration of the basement and associated works, at 190-192 Carrington Road, Randwick, is approved, subject to the conditions of consent at Annexure A.
4. The exhibits, other than A - D, 1 and 3, are returned.
Susan O'Neill
Commissioner of the Court
Annexure A (301032, pdf)
Plans (12820046, pdf)
[8]
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: 31 March 2021
Parties
Applicant/Plaintiff:
Big Property Group Pty Ltd
Respondent/Defendant:
Randwick City Council
Cases Cited (9)
Judgment
COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 108/2020 for alterations and additions to an approved residential flat building including the provision of additional affordable rental housing units, construction of an additional storey comprising a three-bedroom unit, reconfiguration of the basement and associated works (the proposal) at 190-192 Carrington Road, Randwick (the site) by Randwick City Council (the Council).
Making a development application seeking consent to carry out alterations and additions to the approved residential flat building, instead of applying to modify the approved development, is available to the applicant (Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 (Baron) at [3]). The two development consents, the approved residential flat building and the consent for the proposal, will need to be read together (Baron at [4]).
Leave was granted by the Court on 19 January 2021 for the applicant to amend the application to rely on amended architectural drawings, subject to an order that the applicant pay the Council's costs thrown away as a result of the amendment, pursuant to s 8.15(3) of the EPA Act.
Contravention of the height of buildings development standard
The proposal has a maximum height above existing ground level of 13.57m measured from the bottom of the swimming pool to the maximum parapet height of the proposal at RL 38.15. The height of buildings development standard for the site is 9.5m.
The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex D).
Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (Initial Action)). The "development" referred to in subcll 4.6(2), (3) and (4) of LEP 2012 is the development that is the subject of the development application, being the alterations and additions to the approved residential flat building (Baron at [9]).
The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:
(4) Development consent must not be granted for development that contravenes a development standard unless:
(a) the consent authority is satisfied that:
(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
(b) the concurrence of the Secretary has been obtained.
On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) of the LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).