[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
[2018] NSWLEC 118
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446
Judgment (6 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) (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 [42]-[51] (Wehbe) and repeated in Initial Action at [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 at [22]).
The applicant's written request justifies the contravention of the landscaped areas for residential accommodation in zone R1 development standard on the basis that compliance is unreasonable or unnecessary because the proposal is for the adaptive reuse of an existing building and the existing landscaped area on the site is retained and not reduced. Furthermore, there is no aspect of the development that impacts upon the existing landscaped area or exacerbates the existing non-compliance with the standard. In order to increase the landscaped area on the site, part of the existing building would need to be demolished.
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 defends the exceedance of the development standard as a justified response to retaining the existing building on the site and adaptively reusing it. I am satisfied that justifying the contravention of the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour 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]).
I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the zone, for the reasons given by the applicant in the written request.
[3]
Contravention of the FSR development standard
The development standard for the FSR is 0.7:1 (Floor Space Ratio Map Sheet FSR_011 and cl 4.4(2B)(b)(iii) of LLEP 2013). The objectives for the development standard are:
(a) to ensure that residential accommodation -
(i) is compatible with the desired future character of the area in relation to building bulk, form and scale, and
(ii) provides a suitable balance between landscaped areas and the built form, and
(iii) minimises the impact of the bulk and scale of buildings,
(b) to ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale.
The existing building has a FSR of 1.61:1. The proposal has a FSR of 1.56:1. The applicant's written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary because the proposal is for the adaptive reuse of an existing building and the gross floor area is reduced by the proposal when compared to the existing building.
I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the exceedance of the development standard on the basis that the building is an existing building that contributes to the heritage significance of the East Balmain Heritage Conservation Area and the proposal retains and reuses the existing building. I am satisfied that justifying the contravention of the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].
I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the FSR development standard and the zone, for the reasons given by the applicant in the written request.
[4]
Orders
The orders of the Court are:
1. The applicant is granted leave to amend the development application to rely upon the amended architectural plans referred to in condition 1 of the conditions of consent at Annexure A.
2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application in the amount of $6000 payable within 28 days of these orders.
3. The appeal is upheld.
4. Development Application No. D/2019/113 for alterations and additions to the existing building and change of use to a boarding house and ground floor café at 145 Darling Street, Balmain, is approved, subject to the conditions of consent at Annexure A.
[5]
Commissioner of the Court
Annexure A (279495, pdf)
Architectural Plans (14105827, pdf)
[6]
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: 09 November 2020
Parties
Applicant/Plaintiff:
Boston Blyth Fleming Pty Limited
Respondent/Defendant:
Inner West Council
Cases Cited (6)
Contravention of the landscaped areas for residential accommodation in zone R1 development standard
The site area is 469sqm. Clause 4.3A of LLEP 2013 applies to the site at cl 4.3A(2), because "residential accommodation" includes a boarding house in the Dictionary of LLEP 2013. The development standard for minimum landscaped areas for residential accommodation in zone R1 is 20% of the site area (93.8sqm) (cl 4.3A(3)(a)(ii) of LLEP 2013) and site coverage is not to exceed 60% of the site area (281.4sqm, subject to the requirements of cl 4.3A(4)) (cl 4.3A(3)(b) of LLEP 2013). The objectives of the development standard are:
(a) to provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents,
(b) to maintain and encourage a landscaped corridor between adjoining properties,
(c) to ensure that development promotes the desired future character of the neighbourhood,
(d) to encourage ecologically sustainable development by maximising the retention and absorption of surface drainage water on site and by minimising obstruction to the underground flow of water,
(e) to control site density,
(f) to limit building footprints to ensure that adequate provision is made for landscaped areas and private open space.
The proposal has a landscaped area of 6.7sqm (1.4% of the site area) and the existing building covers the rest of the site.
The applicant provided a written request seeking to justify the contravention of the landscaped areas for residential accommodation in zone R1 development standard and the floor space ratio (FSR) development standard, prepared by Boston Blyth Fleming Town Planners and dated 21 September 2020.
Clause 4.6(4) of LLEP 2013 establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (Initial Action)). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [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 proposed 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) (Initial Action at [29]).