Chamberlain v Waverley Council

Contravention of the FSR development standard

1. The proposal has a FSR of 0.78:1.
2. The applicants provided a written request seeking to justify the contravention of the FSR development standard prepared by ABC Planning Pty Ltd and dated November 2019.
3. Clause 4.6(4) of LEP 2012 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 ("Initial Action") at [13]). 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 applicants' 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.
4. 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(2) of the LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action at [29]).

The applicants' written request to contravene the height of buildings development standard

1. 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
2. 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]).
3. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by the Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 ("Wehbe") at [42]-[51] and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]): 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).
4. 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]).
5. The applicants' written request justifies the contravention of the FSR development standard on the bases that compliance is unreasonable or unnecessary because the proposed building envelope complies with the height of buildings development standard and with the Waverley Development Control Plan 2012 (DCP 2012) controls for front, side and rear setbacks and wall height, landscaped area and private open space; the proposal is supported by the heritage experts as an appropriate addition to the heritage conservation area; and the proposal does not result in any amenity impacts on adjoining development.
6. The grounds relied on by the applicants 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]).
7. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicants' written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicants' written request defends the exceedance of the development standard as a justified response to the opportunities and constraints of this site. I am satisfied that justifying the aspect of the development that contravenes the development standard as an appropriate response to meeting the height of buildings development standard and the relevant controls in DCP 2012 as well as being an appropriate infill addition to the heritage conservation area can be properly described as environmental planning grounds within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

1. 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]).
2. The applicants justify the exceedance of the FSR development standard as an appropriate response to the opportunities and constraints of this site while meeting the height of buildings development standard and the relevant controls in DCP 2012 as well as being an appropriate infill addition to the heritage conservation area.
3. 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 applicants in the written request.

Orders

1. The orders of the Court are: 1. Leave is granted to the applicants to amend the development application and rely on the amended plans listed in condition 1(a) of Annexure A. 2. The appeal is upheld. 3. Development Application No. 143/2018 for the demolition of an existing dwelling and construction of two semi-detached dwellings with associated Strata subdivision at 1 Marroo Street, Bronte, is approved, subject to the conditions of consent at Annexure A.

Commissioner of the Court Annexure A (290 KB) Plans (16.9 MB)

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