[2018] NSWLEC 118
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Wehbe v Pittwater Council (2007) 156 LGERA 446
Source
Original judgment source is linked above.
Catchwords
[2018] NSWLEC 118
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
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) (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]:
the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
the development standard has been abandoned by the council;
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 proposal extends the 9 storey massing eastwards into the portion of the site with a 19m height of buildings development standard. The Applicant's written request notes that the volume of the building envelope that causes the exceedance of the development standard is a narrow portion of the upper three levels. The written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary for the following reasons:
The development is consistent with the standard and zone objectives, even with the proposed variation.
There are no additional significant adverse impacts arising from the proposed non-compliance.
Important planning goals are achieved by the approval of the variation.
[2]
Environmental planning grounds relied on by the Applicant
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 Applicant's written request cites the following (summarised) environmental planning grounds as justification for the exceedance of the height of buildings development standard:
1. Inability to amalgamate allotments and dual building height standard has resulted in the proposed variation.
2. The non-compliance and redistribution of height is a response to the DCP 2013 building envelope controls.
3. Redistribution of height to provide for a shared laneway.
4. The non-compliance is entirely consistent with the character of the locality.
5. The non-compliances achieve a high level of design excellence, based on site analysis.
6. Orderly and economic use of land.
7. Limited environmental impacts.
8. The proposed meets aims and objectives of key planning documents.
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] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). 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]).
Generally, the environmental planning grounds cited by the Applicant's written request promote the benefits of carrying out the development as a whole. I make the following observations regarding the Applicant's environmental planning grounds:
The inability to amalgamate allotments is not, in of itself, a justification for an exceedance of the height of buildings development standard and does not specifically focus on the aspect of the development that contravenes the standard. The inability to amalgamate allotments is a justification for a revised masterplan for the site, including the possibility of relocating of the laneway in such a way that it works with the overall pedestrian and traffic flow for the block, and achieves the desired outcomes for the laneway in DCP 2013.
The dual height standards across the site does not, in of itself, justify the exceedance of the lower height standard. Neither the inability to amalgamate allotments consistent with DCP 2013, nor the dual height standards, necessarily dictate an exceedance of the height standard on part of the site.
The non-compliance and redistribution of height as a response to DCP 2013 building envelope controls is not demonstrated by a comparative analysis of the redistribution of the building envelope.
The justifications that the non-compliance is entirely consistent with the character of the locality and achieve a high level of design excellence, based on site analysis, does not focus on the aspect of the development that contravenes the development standard.
The promotion of the orderly and economic use of land is an objective of the EPA Act and not an environment planning ground justifying the exceedance of the height of buildings development standard. It promotes the benefits of the development, without focusing on the aspect of the development that contravenes the development standard.
Similarly, the limited environmental impacts justification is relevant, but does not in of itself justify the exceedance of the development standard.
Achieving the aims and objectives of key planning documents does not focus on the aspect of the development that contravenes the development standard.
The Applicant's written request justifies the exceedance as "a result of the dual building height standards (being the interface between the alternative and standard building height), lot shape, amalgamation pattern and envelope as desired by the DCP 2013". I do not accept the Applicant's justification for the exceedance of the height of buildings development standard. I do accept that the lot ownership and amalgamation patterns differ from those envisaged by DCP 2013, and this requires a revised masterplan for the site referencing the approvals granted on adjoining properties.
There is, in my view, no justification put forward by the Applicant in the written request for both the filling in of the area over the laneway and extending the nine storeys eastward into the lower height of buildings development standard and further towards the low scaled heritage listed primary school. I am not satisfied that the environmental planning grounds nominated by the Applicant's written request necessarily focus on the volume of the building envelope that exceeds the lower height of buildings development standard. For this reason, the exceedance of the height of buildings development standard is not sufficiently justified by the written request.
[3]
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 adopt Ms Morrish's evidence that the proposal ignores many of the key outcomes intended for the precinct, including retail/commercial floor to ceiling heights on the ground floor for a portion of the street façade of the proposal located on 6 Bowral Street and subject to the active street frontages clause at cl 6.20 of LEP 2012. Greater floor to ceiling heights for active frontages is not simply about accommodating services for retail and commercial uses, the grander proportions of ground floors for active frontages is an important urban cue, combined with a nil street frontage (and most often nil side setbacks), that we read intuitively to mean a public/retail or commercial use, and not a residential/private use.
The massing of the street wall is uncomfortable, as there is no relationship between the two-storey entry to the laneway and the change in level of the building envelope. I adopt Ms Morrish's evidence (par 1.29 of Ex 6) regarding the missed opportunity of aligning the break in the built form for the laneway with the change in height of the built form. The position of the laneway opening, moved to the western extent of the site and further west than proposed by DCP 2013, and the shifting of the gross floor area to extend the higher portion of the built form to the east to exceed the height of buildings development standard of 19m, are together, unrelated and contrary to the desired future character for the precinct, because the laneway no longer provides the defined break in building form at the change in height; so it does not serve one of the purposes of the laneway in DCP 2013 to assist with the transition from the higher building form to the lower building form (par 1.17 of Ex 6).
I am not satisfied that the proposal is consistent with the objectives of the height of buildings development standard. The proposal is not compatible with the desired future character of the locality, because it ignores many of the key outcomes intended for the precinct.
[4]
Conclusion
The proposal does not provide a share way/laneway of a kind or nature envisaged by DCP 2013 for the Kensington Town Centre.
The proposal fails to exhibit design excellence pursuant to cl 6.11 of LEP 2012. As the design excellence clause at cl 6.11 of LEP 2012 is a jurisdictional pre-requisite to the grant of consent at subcl (3), this issue is determinative of the appeal.
The contravention of the height of buildings development standard pursuant to cl 4.3 of LEP 2012 is not justified by the Applicant's written request to do so. I am not satisfied that the proposal will be in the public interest, because it is inconsistent with the objective of the height of buildings development standard at cl 4.3(1)(a), pursuant to cl 4.6(4)(a)(ii) of LEP 2012.
[5]
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. Development Application No 172/2022, for a mixed-use development at 6, 8 and 10 Bowral Street, Kensington, is refused.
3. The exhibits, other than Exhibits 1 and 6, are returned.
[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: 21 June 2023
Parties
Applicant/Plaintiff:
Dugandzic
Respondent/Defendant:
Randwick City Council
Cases Cited (8)
Issues
The Council's contentions can be summarised into three fundamental issues, as follows:
The proposal does not provide a share way/laneway of a kind or nature envisaged by the Randwick Comprehensive Development Control Plan 2013 (DCP 2013) for the Kensington Town Centre.
The written request to contravene the height of buildings development standard does not satisfy the jurisdictional pre-requisites under cl 4.6(4)(a) of the Randwick Local Environmental Plan 2012 (LEP 2012).
The proposal fails to exhibit design excellence pursuant to cl 6.11 of LEP 2012 because it does not achieve a high standard of architectural design, materials and detailing appropriate to the building type, as demonstrated by the inadequate floor to ceiling height on the ground level and its failure to achieve an acceptable relationship with development on neighbouring sites.
The Council submitted that a degree of flexibility must be applied to the applicable provisions for the Kensington Town Centre in DCP 2013 because the property amalgamations are not consistent with those assumed by the block plan (Blocks 28B and 28C Kensington Town Centre, f 487 Ex 3). Nevertheless, the inconsistency of site amalgamations with the block plans does not justify ignoring the controls or setting aside the urban design outcome the controls are seeking to achieve.
The Council submitted that cl 6.14 of LEP 2012 is a prohibition for a residential flat building in a business zone (see Toga Addison Pty Ltd atf Toga Addison Unit Trust v Randwick City Council [2021] NSWLEC 1580 [15]-[55]).
Contravention of the height of buildings development standard
The height of buildings development standard for 6 Bowral Street is 31m (pursuant to cl 6.17 of LEP 2012) and for 8-10 Bowral Street is 19m (pursuant to cl 4.3 of LEP 2012). The proposal has a maximum height of 28.73m to the lift overrun over 8 Bowral Street, where the 19m height of buildings development standard applies.
The Applicant provided a written request seeking to justify the contravention of the height of buildings development standard (tab 8 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 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) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).