Brigham v Canterbury-Bankstown Council

Council's position in respect to the cl 4.6 written request

1. The Council's planner, Ms Michael is of the opinion that the breach of the FSR, in conjunction with the lateral side extension along with the rear and lower ground level, results in an unacceptable bulk and scale and is thereby inconsistent with the objectives in (a) (b) and (c) of cl 4.4 of the CLEP.
2. For that reason, she does not accept that the applicant has demonstrated that compliance with the standard in this case is unreasonable or unnecessary: cl 4.6(3)(a).
3. With respect to objective (a) of the standard which seeks to "provide effective control over the bulk of future development", Ms Michael gave oral evidence that in her view the lateral extension increases the bulk of the dwelling and does not maintain the established proportions and existing visual curtilage of the site and streetscape. She does not accept that setting back the new entry to the dwelling a short distance from the edge of the existing dwelling will effectively control the new bulk of this future development. In her opinion, the additional bulk built essentially to the boundary will be visible from the street and parkland opposite and dominate in the existing streetscape.
4. In saying this however, she conceded in the joint report that if the lateral extension was deleted, the proposal would be a compliant scheme. Moreover, such an amendment would in her assessment reduce the visual bulk, whilst maintaining a functional living space and kitchen, and a dwelling that would comprise of a four bedroom house with three separate living areas.
5. Objective (b) of cl 4.4 seeks to "protect the environmental amenity and desired future character of the area". Accepting that the desired future character of the area for the purposes of the cl 4.6 is the existing character under the current controls, Ms Michael expressed the opinion that the bulky lateral extension creates an undesirable precedent with essentially a nil setback on the south western side of the site. In her assessment, the breach to the side setback to accommodate the lateral extension and additional FSR is inconsistent with the existing form of development in the locality, where the dwellings are setback from the side boundaries. It is not replicated elsewhere (even in the renovated dwellings within the street) and will be plainly visible from the public domain opposite, Tennent Parade and from the adjoining site. Accepting that the existing built form is the existing character under the current controls it cannot be said that this lateral building bulk protects the desired future character of the area.
6. Ms Michael also endorses the objections raised by the adjoining residents about the adverse environmental impacts of the bulk of the development on their amenity. She accepts that if approved the development will not "minimise adverse environmental impacts on their adjoining properties or the public domain" and meet objective (c) of the standard. She believes that the outlook from the bedroom windows in the adjoining middle and top floor apartments will be adversely affected by the removal of most of the existing vegetation and its replacement with a high long blank wall located in the main on the boundary. She does not accept that the amendment to slightly shift the wall off the boundary for a short distance and add planting will overcome the adverse environmental impacts of this additional FSR on this boundary.
7. For those reasons she does not believe that the development protects the environmental amenity and desired future character of the area: objective (b) cl 4.4 or minimises adverse environmental impacts on adjoining properties and the public domain: objective (c) of cl 4.4.
8. It is the Council's position that the separation between the existing dwellings in Tennent Parade and the character of the area are achieved by a compliant FSR. To date development along Tennant Parade has respected the pattern and rhythm of the development in respect of lateral bulk. Accordingly, there is no justification to approve this proposal which increases bulk and is at odds with the stated objectives of the FSR standard.

Consideration - Unreasonable or unnecessary

1. At the outset, I wish to make clear my view that when dealing with a cl 4.6 written request it is useful to address each element of the clause in the order in which it is read. This approach helps to avoid legal error and ensure that all relevant subclauses are referred to in the written document. Furthermore, I think it is important to make specific reference to the particular subclause being addressed rather than using a topic heading. As discussed in Miacul at [14] the Court must make specific findings of fact to ground the power to grant consent; and where the ultimate finding of fact is dependent on the application of a legal standard it needs to make specific factual findings in respect of each relevant subclause: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273, 281.
2. Clause 4.6 mandates a discussion about certain matters and the written request must address these matters in order for the consent authority (including the Court on appeal) to consider and form a view about its satisfaction or not. This is better achieved by using the exact wording from the clause specifically rather than paraphrasing the words when addressing particular considerations in respect of the development.
3. The written request in this case seeks to address the mandatory matters in cl 4.6 by reference to headings. It also purports to summarise "several key LEC planning principles and judgments " which it is asserted "have refined the manner in which variations to development standards are required to be approached" . The key findings and directions of each of the judgments are then outlined in the written request in some detail.
4. I do not need to deal with the accuracy or otherwise of the law as summarized in the applicant's written request simply because it does not change the end result. Although, that said, it is plainly wrong at law to state as the applicant asserts that all of the principles in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 with some refinement are relevant to a consideration of a cl 4.6 written request; or that "Commissioners of the Court now frequently comment that there is no requirement anywhere in clause 4.6 that the non-complying development must amount to "a better outcome" than a strictly complaint scheme". It would have been more helpful had the applicant heeded the caution in the decision of Four2 Five Pty Ltd - that when dealing with a cl 4.6 variation request one should remain "faithful to the language of the clause rather than any stated principles".
5. Perhaps, and more importantly it should be remembered that cl 4.6 by its terms does not invite a discussion of the historical case law about the former SEPP1 or for that matter any case law or comment by a commissioner or judge. Rather, cl 4.6 mandates a planning assessment of the matters directly raised by the clause and relevant to the particular development and the circumstances of the case. This is not to say that a legal interpretation of what a particular phrase or clause means cannot be referred to if relevant and ultimately relied upon. For example, the discussion of the meaning of the phrase "unreasonable and unnecessary" by the Preston CJ in Wehbe at [42] - [48] accepted and endorsed more recently in Micaul can be relevant. However, you do not need to list all five tests from Wehbe if the first test is relied upon and said to be satisfied.
6. Having made some general observations about how to approach a cl 4.6 written request let me now address the terms of the clause and the written request before me.
7. First, cl 4.6 requires that I consider and be satisfied as to whether the applicant's written request justifies the contravention of the development standard in cl 4.4 of the CLEP because it demonstrates "that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case" cl 4.6(3)(a).
8. In the event that I am not satisfied about this fact then that is the end of the matter. I cannot approve the variation and there is no jurisdiction to approve of the DA or consider anything else.
9. In this case, the cl 4.6 written request sets out the objectives of the standard in cl 4.4. Objective (a) provides " to provide effective control over the bulk of future development".
10. In response to this objective the written request states: "The bulk and scale of the proposal is appropriate for the site and the surrounding context. The proposed arrangement of the development with the bulk of the proposal contained within the building footprint and behind the existing built form reduces the visual impact of the building scale, ensuring the proposal remains compatible with the prevailing suburban character of the area".
11. The written request also states that strict compliance with the maximum FSR development standard is unreasonable and unnecessary in the circumstances of the application for the reasons I have already outlined at paragraph [30].
12. Ultimately in respect of subclause 3(a), the written request concludes with the assertion that the proposal is consistent with the objectives of the development standard as provided in clause 4.4 of CLEP 2012. The 6% variation is minor in numerical terms less than 14 m² and does not contribute to any discernible or perceived building bulk. (Noting that the written request dealt with the original proposal which has since been amended to reduce the variation to something in the order of 5% I wish to make clear that I have considered this amendment in my assessment of the cl 4.6 written request).

Finding

1. It is my considered opinion that the applicant's cl 4.6 written request does not satisfactorily demonstrate that compliance with the fixed control in the FSR in cl 4.4 of the CLEP standard is unreasonable or unnecessary in this case pursuant to the first test in Wehbe.
2. I accept Ms Michael's evidence as summarised above that the objectives (a), (b) and (c) of cl 4.4 of CLEP are not achieved by this proposal. Based on my observations at the site view, the lateral extension to the south-western boundary will add bulk to the dwelling which will be visible from the street and the parkland opposite. This is a small site and it is my considered opinion that only strict compliance with the FSR numerical control will achieve the first objective of the standard: cl 4.4(1)(a).
3. The concerns expressed by the adjoining residents about the dominant bulk on their common boundary are reasonable in my view. The development does not "minimise adverse environmental impacts on adjoining properties and the public domain" - which is objective (b) to cl 4.4. The adjoining neighbours existing amenity/outlook will be unreasonably comprised by the proposed development essentially on their boundary. While an effort has been made to protect the existing landscaping and introduce more landscaping I am not convinced that this planting will minimise the adverse visual impact of a high, long, blank wall of a development essentially built to their boundary. The additional bulk in this location is not justified on this small site. As Ms Michael observed a fully compliant FSR can be achieved by removing the proposed entry way.
4. I accept that development standards are not ends in themselves but means of achieving ends - those ends being environmental or planning objectives. And, that alternative means can achieve the objectives of a standard. However that is not the case at hand. The proposed development does not proffer an alternative means of achieving the objectives (a), (b) and (c) of the standard under review. In that circumstance there is no appropriate degree of flexibility to relax the requirement for strict compliance with the standard. It is both necessary and reasonable as it serves to achieve the objectives of the standard and thereby a better outcome for and from development.

Orders

1. For the reasons set out the appeal is dismissed and the exhibits returned.

Susan Dixon Senior Commissioner

Amendments 09 August 2018 - Corrections to typographical errors at, [11], [16] and coversheet 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 August 2018