56 While I acknowledge the table above, it is my understanding that the ADG nominates separation distances between buildings (rather than individual side setbacks to common boundaries) with the separation distances essentially a doubling of the dimensions indicated in the table. That is to say, it is my understanding that an equal across-boundary sharing of the ADG building separation distances would arrive at the side setbacks indicated in the table.
57 Mr Delapierre's evidence was that (Ex 3 par 3.6):
The setbacks of buildings in the immediate precinct are varied. The building has been carefully designed to minimise impacts on the two adjoining properties and the design of the building does not reduce the potential of these sites to develop towards the bulk and scale envisioned by the existing and future planning controls."
- After taking me through the Commissioner's judgment in the fashion described above, Mr Galasso next turned to his written submissions dated 30 September 2021.
- Mr Galasso's written submissions then turned specifically to the grounds in Mr Cumming's Amended Summons.
- In his oral submissions, he noted that Ground 1 was the principal ground, being whether the Commissioner had had regard to erroneous matters in his consideration of whether there were sufficient environmental planning grounds, set out in the written request, to justify dispensation from compliance with the Auburn LEP's height control (Transcript 12 October 2021, page 23, lines 9 to 17). He noted that the defects in the Commissioner's reasoning, of which complaint was made in support of Ground 1, were set out at (i) to (viii) of the particulars pleaded in support of this ground.
- Before turning to matters of detail concerning each of these particulars, Mr Galasso took me to the judgment of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), at [24], where Mr Galasso quoted from the following elements of the paragraph (citations omitted):
24 The environmental planning grounds relied on in the written request under cl 4.6 must be "sufficient". There are two respects in which the written request needs to be "sufficient". First, the environmental planning grounds advanced in the written request must be sufficient "to justify contravening the development standard". The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. Second, 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.
- Mr Galasso next referred to Preston CJ's Court of Appeal reasons in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, at [51], as defining the necessary focus for what was required to be addressed by a cl 4.6 request.
- Mr Galasso noted that the question of environmental planning grounds required to be demonstrated for a successful dispensation request was of narrower focus than the broader question of whether the proposed development was, in totality, in the public interest (Transcript 12 October 2021, page 24, lines 16 to 21). He then summarised what he submitted was the defect underlying Ground 1 as being (Transcript 12 October 2021, page 24, lines 23 to 26):
… the Commissioner impermissibly effected the consideration by reference to other aspects of the development comprising either aspects of the development as a whole, the aspects of the development unrelated to the matter of building height.
- Mr Galasso then took me through, and expanded upon, the various matters relied upon from the Commissioner's judgment as demonstrating the validity of the complaint embodied in each of the particulars. It is not necessary for me to address all of these in detail. First, I note particular (vi), a particular in the following terms:
(vi) the Commissioner erred in observing that the proposal would comply with ADG separation if it was about one storey less than proposed (Judgment [61]).
- I later address this particular in my consideration of this appeal ground.
- Mr Galasso then addressed (ii) to (iv) explaining why the Commissioner had regard to these matters, bringing together matters which were not relevant or not strictly relevant to the proposed height exceedances. He noted that he had grouped (v) to (vii), drawing attention to this element of his written submissions at page 9, doing so in the following terms:
As the particulars identified, at judgment 58-61. The Commissioner not for the first time, referenced aspects of relationship in terms of setback to the adjoining land to the west. Those paragraphs are concerned with a setback provision contained in the apartment design guide: AB, Tab 20, P523. A number of things remain relevant to this aspect of the judgment, insofar as it is irrelevant to the clause 4.6 request with respect to building height:
(a) The ADG is a document reference in state environmental planning policy 65 (SEPP 65): AB Tab 19, clause 28(2)(c).
(b) SEPP 65 does not apply to this application, it not comprising that form of development specifically engaged by its provisions at clause 4 (citations omitted).
(c) The Commissioner appears to be accepted that amenity impacts were minimised through design response: judgment 58.
(d) To the extent that at judgment 61. The Commissioner attempted to relate what he described as a potential burdening of 28 Mary Street by relating height to building separation, he was wrong a complying building of one story less than proposed would not, according to the ADG provisions, lessen the burden on 28 Mary Street somewhat compared to the proposal. That is because, by reference to the ADG provisions (AB 523), threshold for a difference in building separation occurred at the 4/5 story transition, not a 7/6 story transition. Furthermore, the reference the building separation provisions varying with height for distances up to 12 m was entirely misplaced with a proposal designed 23 m in the lower threshold being slightly more than half of that amount: judgment 61.
- Mr Galasso submitted that each of the environmental planning grounds that had been advanced in the cl 4.6 request had been established in the context that they had been confined, by the draft of the request, to the additional height sought that was in excess of the development standard. He submitted that, to the extent that the Commissioner head traversed matters dealing with, and had made conclusions about, aspects of the proposed development unrelated to the proposed height exceedances, he was in error in doing so, in his evaluation of the clause 4.6 request.
- His written submissions, summarising what he proposed concerning Ground 1, were that:
Thus, on the findings made by the court below in relation to the environmental planning grounds, it is quite apparent that the finding with respect to the clause 4.6(3)(b) question ought to have been, in the absence of consideration of extraneous and irrelevant matters, in the affirmative (citing Hope v Bathurst City Council ).