Equity Land Holdings Pty Ltd v Inner West Council [2019] NSWLEC 1157 | Case summary

Land and Environment Court (NSW)|2019-04-04

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 [25]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by the Chief Judge in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] ("Wehbe") 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. 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).

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 proposed development will be in the public interest because it is consistent with the objectives of the B4 zone and the height of buildings development standard, to establish the maximum height of buildings; to ensure building height is consistent with the desired future character of an area; to ensure buildings and public areas continue to receive satisfactory exposure to the sky and sunlight; and to nominate heights that will provide an appropriate transition in built form and land use intensity.
The establishment of the maximum height of buildings for the site is achieved by the imposition of the development standard. I am satisfied that the overall building envelope of the proposal is broadly consistent with the goal of establishing a maximum building height of 14m in the B4 zone in this section of Parramatta Road, because the maximum height of the proposal is 1.12m above the development standard of 14m in an area of the site that falls below the level of the majority of the site area and in a small portion of the existing façade to be retained fronting Parramatta Road.
The site is located within the "Parramatta Road (Commercial)" precinct under s 9 of the DCP 2011. The Desired Future Character (DFC) for the area is articulated in s 9.3.2, as follows: "The desired future character of the area is: 1. To protect the identified Heritage Items within the precinct. 2. To protect the identified values of the HCA 5 Parramatta Road Commercial Precinct Heritage Conservation Area. 3. To protect and preserve contributory and period buildings within the precinct and require their sympathetic alteration or restoration. 4. To protect and enhance the character of streetscapes and public domain elements within the precinct including prevailing subdivision patterns, building typologies, materials and finishes, setbacks, landscaping, fencing, open space, carriageway and footpath design and kerb and guttering. 5. To ensure that buildings provide strong definition to the street through retention of the existing nil building setbacks. 6. To retain, as a minimum, the front portion of contributory buildings where they are contributory to the Parramatta Road Commercial Precinct Heritage Conservation Area and/or streetscape. 7. Where required, to protect, preserve and enhance the existing character of the streetscape, where only compatible development is permitted. 8. To ensure the street building frontage of infill development complements the siting (location and orientation), scale, form (height, massing and setback), proportion (height to width and solid to void), rhythm, pattern, detail, material, colour, texture, style and general character in the design of the existing predominantly traditional two storey commercial streetscape, without being imitative. 9. To ensure that there are active commercial fronts to new buildings facing onto streets to create a vibrant and safe streetscape. 10. To ensure that any new residential development considers the amenity of residents in terms of noise and pollution generated by traffic volumes along Parramatta Road. 11. To ensure that higher density development demonstrates good urban design and environmental sustainability and provides suitable amenity for occupants of those developments. 12. To ensure that the design of higher density development protects the residential amenity of adjoining and surrounding properties. 13. To ensure that new development considers all potential impacts to biodiversity. 14. To support pedestrian and cyclist access, activity and amenity including maintaining and enhancing the public domain quality. 15. To ensure that new development respects local fauna by minimising lighting impacts on nocturnal fauna; reinforcing the permeability of the GreenWay Corridor to the surrounding built environment for local fauna; and providing a minimum 3 metre native vegetation buffer between the GreenWay Corridor and any new development. 16. To ensure that the provision and design of any parking and access for vehicles is appropriate for the location, efficient, minimises impact to streetscape appearance and maintains pedestrian safety and amenity."
The retention of the Parramatta Road façade, although not identified as a heritage item or within a heritage conservation area, will contribute to achieving the objectives of the DFC for the Parramatta Road elevation, by retaining and preserving some of the elements that contribute to the existing character of Parramatta Road.
The proposal achieves satisfactory solar access with 78.6% of apartments achieving 2 hours of solar access at the winter solstice.

Contravention of the FSR development standard

The proposal has a FSR of 2.124:1.
The applicant provided a written request seeking to justify the contravention of the FSR development standard, prepared by Planning Ingenuity and dated 1 April 2019.
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 has an absence of any material impacts on the amenity of adjoining properties and provides good amenity for the future occupants of the proposal. Furthermore, the proposed building envelope is similar to nearby recently approved development with similar characteristics to the site, including 80-84 Parramatta Road, Stanmore (FSR 2.33:1); 30-34 Parramatta Road, Stanmore (FSR 1.76:1) and 52-54 Parramatta Road, Stanmore (FSR 1.77:1). Although two of these developments are for boarding houses, neither application was eligible for the "bonus FSR" under the State Environmental Planning Policy (Affordable Rental Housing) 2009.
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 FSR development standard as a justified response to the built context of the site. I am satisfied that justifying the aspect of the development that contravenes 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].

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

I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the FSR development standard, to establish the maximum floor space ratio; to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas; and to minimise adverse environmental impacts on adjoining properties and the public domain.
The establishment of the FSR development standard for the site is achieved by the imposition of the development standard. I am satisfied that the overall building envelope of the proposal is broadly consistent with the goal of establishing a maximum FSR of 1.5:1 in the B4 zone in this section of Parramatta Road, because the proposal maintains the existing façades of Parramatta Road and the proposal is consistent with the bulk and scale of the existing development when viewed from Parramatta Road and its built context.
The proposal minimises adverse environmental impacts on adjoining properties and the public domain because the additional floor space above the FSR development standard can be said to be provided at the centre of the proposed development or in the upper level of the southern building and neither element of the building envelope results in additional adverse impacts on solar access to adjoining properties. The siting of the buildings avoids unreasonable adverse impacts on neighbouring properties and is consistent in built form and character with the built context of the site, including recent development approvals.

Orders

The orders of the Court are: 1. The applicant is granted leave to amend the development application by relying on the amended documentation referred to in condition 1 of the conditions of consent at Annexure 'A.' 2. The applicant is to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $7,000 paid within 21 days of the making of these orders. 3. The applicant's written requests under clause 4.6 of the Marrickville Local Environmental Plan 2011 seeking a variation of the developments standards for height of buildings and floor space ratio under clauses 4.3 and 4.4 of the Marrickville Local Environmental Plan 2011 are upheld. 4. The appeal is upheld. 5. Development Application No. 201700587 for the demolition of all existing structures and construction of a mixed use development including basement parking and five storeys comprising two commercial tenancies and 28 apartments, at 38-48 Parramatta Road, Stanmore, is approved, subject to the conditions of consent at Annexure 'A.'

Susan O'Neill Commissioner of the Court Annexure A (281 KB, pdf)

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: 03 May 2019

Contravention of the height of buildings development standard

The proposal has a maximum height above existing ground level of 15.12m.
The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by Planning Ingenuity and dated 1 April 2019.
Clause 4.6(4) of LEP 2011 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] 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 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(2) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2011 (Initial Action at [29]).

(2007) 156 LGERA 446

Equity Land Holdings Pty Ltd v Inner West Council

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