Etherington v North Sydney Council

Land and Environment Court (NSW)|2021-05-04

Judgment

COMMISSIONER: These proceedings arise following the Council's actual refusal of development application DA56/20, lodged on 17 March 2020 for the demolition of an existing dwelling and construction of a new dwelling with associated tree removal and earthworks at Lot 33 DP 8933, 58 Cowdroy Avenue, Cammeray (the subject site).
The Class 1 appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and is determined pursuant to the provisions of s 4.16 of the EP&A Act.
The proposed dwelling breaches the height control set by the North Sydney Local Environmental Plan 2013 (NSLEP), and the Applicant relies on a request to vary this height control, pursuant to cl 4.6 of the NSLEP. Amongst other contentions, the Respondent contends that the written cl 4.6 Variation Request (cl 4.6 written request) is inadequate.
For the following reasons I have determined that the written cl 4.6 written request is inadequate and that the appeal should be dismissed.

The site and surrounds

The site is located in Cammeray on the northern side of Cowdroy Avenue and is bounded to the north by the foreshore of Sydney Harbour. Its locality is predominantly residential, consisting of dwelling houses of varying heights and styles.
The site has a northerly aspect with a view of Long Bay, Tunks Park, and the Northbridge Golf Course. It has an area of 556m2 and is irregular in shape, with north and south boundaries of approximately 13m and side boundaries of 45m. A smaller lot of reclaimed land adjoins the site to the north (Lot 1 DP 583587).
Adjacent to the site to the east is a detached dwelling house, 2 Folly Point, which is a four-storey plus carport building. To the west is a three-storey detached dwelling, 56 Cowdroy Avenue, that is the subject of a development consent for alterations and additions.

Statutory context

The following instruments are applicable to this application: 1. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) 2. State Environmental Planning Policy No 19 - Bushland in Urban Areas (SEPP 19) 3. State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) 4. State Environmental Planning Policy - Building Sustainability Index: BASIX 2004 (SEPP BASIX) 5. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) 6. North Sydney Local Environmental Plan 2013 (NSLEP) 7. North Sydney Development Control Plan 2013 (NSDCP) 8. Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (Sydney Harbour DCP).

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Under this SREP the site is identified as part of the Sydney Harbour Catchment, designated Foreshores and Waterways Area, and in part zoned W6 - Scenic Waters: Active Use.
Part 2 Planning Principles of the SREP establishes a set of principles which are to be considered and, where possible, achieved in the preparation of environmental planning instruments and development control plans under Part 3 of the SREP, and in the preparation of environmental studies and master plans for the purposes of the SREP. Clause 13 lists the planning principles for land within the Sydney Harbour Catchment, which applies to this site. The relevant planning principle which is contended is cl 13(f): … (f) development that is visible from the waterways or foreshores is to maintain, protect and enhance the unique visual qualities of Sydney Harbour, …
Clause 14 sets the planning principles for land within the Foreshores and Waterways. The relevant planning principles that is contended is cl 14(d): … (d) Development along the foreshore and waterways should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands and foreshores, …
The Applicant submits that the visual qualities of this foreshore are cultural rather than natural. The foreshore is highly modified and littered with man-made structures. The intertidal zone is populated with boats and jetties, and the setting is one of harbourside residential. In considering the principles established in both cll 13(f) and 14(d), the Applicant further submits that both principles are relatively non-specific and that the development is generally consistent with the "visual qualities of Sydney Harbour" in this location. The visual impact of this development remains a contention of the Respondent, however this is primarily in relation to the standards established under the NSLEP and NSDCP rather than the planning principles of this SREP.
Under Part 3 of the SREP, the northern portion of the site from the mean highwater mark extending into the water is zoned W6 - Scenic Waters: Active Use. No development is proposed within the portion of the site that falls under this instrument, and the parties agree and I accept that these zoning objectives are subsequently not relevant to the proposed development.
Division 2 of the SREP identifies matters which are to be taken into consideration by consent authorities before granting consent to development under Part 4 of the SREP. The relevant matters to this development are under cll 21, 25 and 26. I have taken into consideration the matters identified in these clauses, based on the submissions of both parties in relation to the visual impact, scale, form, design and siting of the building, as well as issues pertaining to view loss pursuant to cl 26(a).

State Environmental Planning Policy No 55 - Remediation of Land

Based on the Applicant's submission and evidence in the planning report prepared by Mr John McFadden, I accept that the site has a long history of residential use and is not a known source of contamination.

State Environmental Planning Policy No 19 - Bushland in Urban Areas

The site is identified on Council's Bushland Buffer Map as being within 100m of bushland (Buffer Area 'A'). The provisions of SEPP 19 require Council to assess the protection and preservation of bushland within urban areas. This matter is discussed and resolved in the Joint Landscape Expert Report, Exhibit 5, and I am satisfied that the objectives of this policy are met with the proposed development.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

A BASIX Certificate has been submitted that pertains to the development in its previous iteration. The Applicant submits and I accept that the extent of changes between the plans upon which this certificate was based and the plans before the Court is negligible for BASIX purposes, and the certificate remains applicable to the proposal before the court.

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

The aims of the Vegetation SEPP are: (a) to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and (b) to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.
Based on the evidence within Exhibit 5 and the subsequent agreement of the landscape experts, I am satisfied that the amended development before the Court adequately meets the aims of the Vegetation SEPP.

North Sydney Local Environmental Plan 2013

The site is located in the E4 Environmental Living zone under the NSLEP, where the proposed demolition of a dwelling and construction of a new dwelling is permissible with consent. The objectives of the zone are: ● To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. ● To ensure that residential development does not have an adverse effect on those values. ● To ensure that a high level of residential amenity is achieved and maintained.
Both parties agree and I accept on the basis of submissions that this site does not feature any special ecological, scientific or aesthetic value.
The Applicant submits that the development strives to ensure that a high level of residential amenity is achieved and maintained through the building design, and that the amenity of the living area is particularly relevant to this, noting that the living area is the subject of the breach of the height control and the subject of the cl 4.6 written request discussed below. Mr Tomasetti further submits that the high level of amenity of neighbouring sites at 2 Folly Point and 56 Cowdroy Avenue is maintained through this development. The loss of visual amenity from 56 Cowdroy Avenue was of particular focus in the Applicant's submissions and remains a contention.
Clause 4.3 of NSLEP Height of Buildings establishes a maximum building height of 8.5m and reads: (1) The objectives of this clause are as follows - (a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient, (b) to promote the retention and, if appropriate, sharing of existing views, (c) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development, (d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings, (e) to ensure compatibility between development, particularly at zone boundaries, (f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. (2A)-(2C) (Repealed)
Clause 4.4 of NSLEP establishes maximum floor space ratios for buildings, and none is set for this site.
Clause 4.6 of NSLEP Exceptions to development standards has been applied to this development proposal in seeking a variation to the height of building standard set by cl 4.3 of NSLEP. The application of this clause is discussed further in this judgment. Clause 4.6 of NSLEP is as follows: (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (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. (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 Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if - (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. Note - When this Plan was made it did not include all of these zones. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following - (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4, (ca) in relation to land identified as "Land in St Leonards" on the Exceptions to Development Standards Map - clause 4.3(2) by more than 3 metres (excluding plant rooms and similar structures), (cb) clause 6.3(2)(a) and (b), (cba) clause 6.19A, (cc) clause 6.20. (8A) Subclause (8)(ca) ceases to apply on 31 December 2015.
Clause 6.9 of NSLEP Limited development on foreshore area applies to this site, and is as follows: (1) The objective of this clause is to ensure that development in the foreshore area will not impact on natural foreshore processes or affect the significance and amenity of the area. (2) Development consent must not be granted for development on land in the foreshore area except for the following purposes - (a) the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area, (b) the erection of a building in the foreshore area, if the levels, depth or other exceptional features of the site make it appropriate to do so, (c) boat sheds, sea retaining walls, wharves, slipways, jetties, waterway access stairs, swimming pools, fences, cycleways, walking trails, picnic facilities or other recreation facilities (outdoors). (3) Development consent must not be granted under subclause (2) unless the consent authority is satisfied that - (a) the development will contribute to achieving the objectives for the zone in which the land is located, and (b) the appearance of any proposed structure, from both the waterway and adjacent foreshore areas, will be compatible with the surrounding area, and (c) the development will not cause environmental harm such as - (i) pollution or siltation of the waterway, or (ii) an adverse effect on surrounding uses, marine habitat, wetland areas, fauna and flora habitats, or (iii) an adverse effect on drainage patterns, and (d) the development will not cause congestion or generate conflict between people using open space areas or the waterway, and (e) opportunities to provide continuous public access along the foreshore and to the waterway will not be compromised, and (f) any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land will be maintained, and (g) in the case of development for the alteration or rebuilding of an existing building wholly or partly in the foreshore area, the alteration or rebuilding will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, and (h) sea level rise or change of flooding patterns as a result of climate change has been considered. (4) In this clause - foreshore area means the land between the foreshore building line and the mean high water mark of the nearest natural waterbody shown on the Foreshore Building Line Map. foreshore building line means - (a) the line that is landward of, and at the distance specified on the Foreshore Building Line Map from, the mean high water mark of the nearest natural waterbody shown on that map, or (b) if no distance is specified, the line shown as the foreshore building line on that map.
Pursuant to cl 6.9(2)(c) of NSLEP, waterway access stairs are permitted, subject to the provisions of cl 6.9(3). In the revised plans before the Court the dwelling, swimming pool and associated structures have been modified to fall outside the foreshore building line. However, the Respondent contends that the levels resulting from the proposed development create an unreasonable quantity of fill within this foreshore area, contravening the objectives of cl 4.3 of NSLEP.
Clause 6.10 of NSLEP Earthworks lists matters the consent authority must consider before granting development consent. Pursuant to cl 6.10 (3)(a), the Assessment Report of the original development application by Lisa Kamali, Senior Assessment Officer, dated 20 July 2020 states that although further information is required, Respondent's Development Engineer raised no objection to the application subject to conditions. I am satisfied that issues pertaining to cl 6.10(3)(a) could be managed by way of condition. I am further satisfied that issues pertaining to detrimental effects on natural features of and vegetation on the site and adjoining land have been resolved by the landscape experts, as per Exhibit E.

North Sydney Development Control Plan 2013

Various provisions are made under the NSDCP that apply to the proposed development, specifically under Part B Section 1 - Residential Development: section 1.3 Environmental Criteria; section 1.4 Quality Built Form; section 1.5 Quality Urban Environment, and; section 4.0 Cammeray Planning Area Character Statement. These are further detailed in the Report of Mr McFadden, dated 25 January 21, at tab 23, Exhibit 3.

Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005

The Sydney Harbour DCP applies to all development proposals within the Foreshores and Waterways area identified in the SREP, and therefore applies to this site.
Landscape Character Type 3 under Part 3 of the Sydney Harbour DCP establishes a statement of character and intent, and relevant performance criteria for Long Bay, where this site is located. I am satisfied based on the evidence of the landscape experts that the relevant performance criteria are met with the proposed development.
Clause 5.4 provides further guidance on built form, with relevant guidance on roof form.

Contentions and evidence

At the commencement of proceedings, Mr Seton for the Respondent confirmed that the contentions of: height; built form and character; adverse impact on existing views and view sharing; excessive excavation and filling; overshadowing of neighbouring properties; insufficient and inadequate information (in part); overdevelopment; and public interest remain in contention. All landscape contentions have been resolved.
In submissions it became apparent that the Respondent's principal issue was one of excessive height, resulting in impacts on view and amenity.
The proposed dwelling is three-storeys, with a fourth storey containing lift and stair access, and a garage that is level with Cowdroy Avenue. The Applicant acknowledges that, despite the amendments to the drawings, the proposed dwelling breaches the 8.5m height limit set by cl 4.3(2) of NSLEP. This breach occurs at the roof of the third storey, which is the uppermost habitable storey and contains the living/dining room and kitchen, and a further breach to the stair and lift core to the northern portion of the fourth (garage) storey.
Clause 4.3 of NSLEP Height of buildings is as follows: (1) The objectives of this clause are as follows - (a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient, (b) to promote the retention and, if appropriate, sharing of existing views, (c) to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development, (d) to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings, (e) to ensure compatibility between development, particularly at zone boundaries, (f) to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. (2A)-(2C) (Repealed)
As the height breaches the 8.5m height limit, consent cannot be granted except in accordance with cl 4.6(2) of the NSLEP. Accordingly, subcll (3) and (4) state: (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (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. (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 Planning Secretary has been obtained.
In considering whether the requirements of cl 4.6 have been achieved, Gray C summarised the following principles in Abrams v Council of the City of Sydney [2019] NSWLEC 1583: "32 Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action"), for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that: The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)), The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)), The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). 33 Consistent with the decision of the Court of Appeal in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, the Court, in exercising the functions of the consent authority, must "in fact" be satisfied of the above matters. The state of satisfaction that compliance is "unreasonable or unnecessary" and that there are "sufficient environmental planning grounds" to justify the contravention (the first two dot points above) must be reached only by reference to the cl 4.6 request. Whilst the evidence in the proceedings can assist in understanding the request and in considering the adequacy of the request, it cannot supplement what is in the request. On the other hand, the state of satisfaction that the proposed development is in the public interest (the last two dot points above) can be reached by considering the evidence before the Court, without being limited to what is contained in the cl 4.6 request."
Additionally, pursuant to cl 4.6(4)(b), the concurrence of the Planning Secretary is required. Pursuant to s 39(6) of the LEC Act, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without either obtaining or assuming concurrence of the Planning Secretary, but the matters in cl 4.6(5) of the NSLEP must still be considered (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [29]).

The written request

To enable the breach of the height development standard shown on the amended drawings before the Court, an amended written request has been made pursuant to cl 4.6 of NSLEP (the cl 4.6 written request).
In demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case, the written request adopts the first of five methods established in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). This principle is to establish that the objectives of the development standard are achieved notwithstanding non-compliance with the standard (Wehbe at [42]-[43]).
The first objective of the development standard is, "to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient". Mr Boston states in his request that the proposed building has been designed to minimise excavation and to appropriately step down with the steep landform, notwithstanding the building height breaching elements.
The second objective of the development standard is, "to promote the retention and, if appropriate, sharing of existing views". To establish consistency with this objective, Mr Boston states in the cl 4.6 written request that this objective encourages rather than mandates view retention, and that "it would be extremely difficult to further develop this underdeveloped site without impacting existing views to some extent." From this, he states that the retention of views on this site is neither reasonable nor appropriate, and subsequently applies the view sharing principles established in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity) to establish whether the impact of the development on the views from 56 Cowdroy Avenue is reasonable.
It should be noted that, at the site view, the parties agreed that the principle location for view loss was the dwelling at 56 Cowdroy Avenue.
The third objective of the development standard is "to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development". The impact of the development on solar access to 56 Cowdroy Avenue is demonstrated through shadow diagrams appended to the cl 4.6 written request. No overshadowing occurs to public spaces or the street.
The fourth objective of the development standard is "to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings". Privacy minimisation is demonstrated by the side elevations, incorporating highlight windows to the east and vegetated screens to the west. Mr Boston states in his cl 4.6 written request that this objective is achieved notwithstanding the breach of the building height standard.
The fifth objective of the development standard is "to ensure compatibility between development, particularly at zone boundaries". It is noted that the property is not located at a land-based zone boundary. Compatibility between development is stated in the cl 4.6 written request as being achieved through a development proposal that is compatible in scale and height with adjoining development, and development generally along this section of the foreshore.
The sixth and final objective of the development standard is "to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area." To establish consistency with this objective, the cl 4.6 written request describes the relevant streetscape and development features that constitute the existing and desired future character of the area and explains how the proposed development is consistent with this.
Pursuant to cl 4.6(3)(b) and cl 4.6(4)(a)(i) of NSLEP, the cl 4.6 written request must then adequately establish sufficient environmental planning grounds to justify contravening the development standard, noting that the focus of cl 4.6(3)(b) is on the aspect of the development that contravenes the development standard, not on the development as a whole. The environmental planning grounds advanced in the cl 4.6 written request are summarised as follows:

The steep topography of the site and the presence of a sewer main across the developable area of the site prevents a further lowering of the lower ground floor plate.
The height, bulk and scale of the development is consistent with the existing and likely future character of the area and compatible with adjoining development, and development in the locality along the foreshore.
Strict compliance with the height development standard would necessitate removing or significantly reducing the uppermost floor of the dwelling, precluding the construction of a reasonable level of floor space and resulting in a building height that is disparate with surrounding development. This in turn would preclude the orderly and economic development of the waterfront location.
The development achieves the objects of s 1.3 of the EP&A Act in promoting the orderly and economic use and development of land; representing good design; and facilitating proper construction and ensuring the protection of the health and safety of its future occupants.

Finally, the cl 4.6 written request must establish that the proposed development will be consistent with the objectives of the standard in question, and the objectives of the zone (cl 4.6(4)(a)(ii)). Consistency with the objectives of the standard is discussed in relation to the 'unreasonable or unnecessary' test above. The cl 4.6 written request also addresses whether the proposed development is consistent with the zone objectives (see Exhibit F p 23).

The Respondent's submission in response to the request

The Respondent contends that the amended cl 4.6 written request is insufficient for the following reasons: 1. The numeric request for variance on page 2 is incorrect in both instances, requesting a lesser variation than is required by the development. Subsequently, there are no documents (including architectural drawings) which accurately identify the true exceedance of the height development standard. The impact of the non-compliance can therefore not be adequately assessed, and furthermore, the variance requested is insufficient in facilitating the proposed development. 2. Because of this numeric inaccuracy, there is insufficient information to assess if the development with the height exceedance is consistent with the objectives of the zone. 3. The likely, estimated result of the contravention is that it is inconsistent with cl 4.3(1)(b) of NSLEP "to promote the retention and, if appropriate, sharing of existing views"; and subcl (1)(c) "to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development", as the height exceedance is positioned where it will impact both views from, and solar access to, 56 Cowdroy Avenue. 4. Based on the testimony of Mr Boston, it is likely that the additional height of the proposed development overshadows windows along the eastern elevation of 56 Cowdroy Avenue, which is contrary to the objective of cl 4.3(1)(c), "to maintain solar access to existing dwellings …". 5. There are insufficient environmental planning grounds established in the cl 4.6 written request to satisfy the requirements of cl 4.6(3)(b) of NSLEP. The environmental planning grounds advanced by the cl 4.6 written request are broad and not specific enough, and the grounds relating to the sewer main and the height, bulk and scale focus on the whole of the development rather than the contravention. This is not consistent with the methodology set out in Initial Action at [23], which requires the cl 4.6 written request to focus on the contravention.
In his cross examination of the Applicant's planning expert, Mr Boston, Mr Seton examined the numeric request for variance stated on page 2 of the cl 4.6 written request, and established that it was incorrect in both instances. The request states that: "The proposed new dwelling has a maximum building height of 9.82 metres along the northern edge of the upper level kitchen/ dining / living roof form with the extent of non-compliance reducing in a southerly direction to a point where the southern portion of this roof form is compliant with the height standard. This represents a maximum building height non-compliance of 1.32 metres or 15.5%. The northern portion of the lift and stair core, where it adjoins the proposed garage, has a maximum building height of 10.61 metres with the extent of non-compliance reducing in a southerly direction to a point where the southern portion of this building element is compliant with the height standard. This represents a maximum building height non-compliance of 2.110 metres or 24.8%. The balance of the development, including the proposed carparking structure, sits below prescribed building height standard as depicted in the height blanket diagram at Figure 1 over page."
Figure 1 of the cl 4.6 written request depicts the height exceedance as stated in the above paragraphs, with the height terminating at RL20.77 for upper level kitchen/dining/living roof form and RL20.606 for the northern portion of the lift and stair core.
Mr Seton suggested, and Mr Boston conceded that the exceedance is in fact: 2.17m to the upper level kitchen/dining/living roof form, not the requested 1.32m; and 3.16m to the northern portion of the lift and stair core, not the requested 2.11m.

The Applicant's submission in support of the request

In closing, Mr Tomasetti acknowledges that the numeric exceedance above the 8.5m height limit, as stated in the cl 4.6 written request, is inaccurate. However, he states that, irrespective of this a full assessment against the requirements of cl 4.6 can be made as the impact of the development as a whole can be assessed through the application of accurate RLs. He considers that, even if the 'height blanket' as drawn on figure 1 of the cl 4.6 written request is an average, the most substantial breach is still correctly identified as the roof over the living area. He concludes that the proposed development may be clearly assessed as meeting all objectives, regardless of the breach of the height development standard.
In support of this, Mr Boston stated in evidence that although the shadow diagrams do indicate some overshadowing of existing windows to the eastern elevation of 56 Cowdroy Avenue, this would not result in an unacceptable level of solar access to this neighbouring property. He states that the north-facing windows that constitute the primary outlook of this dwelling receive unobstructed sunlight, affording this dwelling a generous amount of direct sunlight, over and above standard requirements. He concludes that, as a result, the overshadowing impacts caused by the proposed development are acceptable.
Mr Boston further stated in evidence that the impact of view loss on 56 Cowdroy Avenue could be adequately assessed based on an understanding of the RLs as stated on the drawings. Based on the principles for assessment of view loss set out in Tenacity, the Applicant concludes that although there will be view loss from 56 Cowdroy Avenue across the side boundary, an unobstructed arc of view is maintained to the north and west of this property, which is consistent with the principles of view sharing established in Tenacity. Accordingly, Mr Tomasetti concludes that the likely impact of the proposed development on views from 56 Cowdroy Avenue is acceptable, regardless of the height of the actual vertical exceedance of the development standard.
Subsequently, Mr Tomasetti states that the impacts of the proposed development on both views from 56 Cowdroy Avenue and solar access to 56 Cowdroy Avenue are reasonable, and compliance with the development height standard is unreasonable or unnecessary.

The request does not establish sufficient environmental planning grounds

I preface my discussion of the environmental planning grounds advanced by the cl 4.6 written request by stating that I accept the submission of Mr Seton and the subsequent testimony of Mr Boston that the numeric request in the cl 4.6 written request is incorrect. I further accept the submission of Mr Seton that, in the absence of an accurate request for a numeric variation, there is insufficient information to assess the impacts of the contravention itself, as the cl 4.6 written request does not accurately do so.
Preston CJ states in Initial Action at [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. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. 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: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]."
Regardless of verbal submissions advanced by either party, it is the cl 4.6 written request from the Applicant that must satisfy the requirements of subcll 4.6(3) and (4) of NSLEP. In exercising the functions of the consent authority in these proceedings, I must be satisfied that the cl 4.6 written request adequately establishes, amongst other things, sufficient environmental planning grounds to justify the contravention of the development standard.
I do not accept the Applicant's claim that achieving strict compliance would either prevent "a reasonable level of floor space" being achieved, nor prevent the orderly or economic development of the site. The floor of the development that incorporates the height breach (Level 2) features a floor-to-ceiling height of 3.2m, grading upwards to a height of approximately 5.2m. Although this would undoubtedly result in a high level of amenity for users of the resulting habitable room there is no evidence to suggest that a lower floor-to-ceiling height, or a strictly complying building height would result in any lesser amenity, nor an unreasonable level of floor space.
It follows that there is insufficient reason to conclude that strict compliance with the height development standard would negate the capacity for the site to achieve an orderly or economic development outcome. As such I do not accept that the potentially reduced floor space justifies the contravention of the development standard.
I further do not accept the relevance of the argument that the steep topography of the site and the presence of a sewer main across the developable area of the site prevents a further lowering of the lower ground floor plate. It is not necessarily the level of the ground floor that results in the height non-compliance, but more the ceiling height and configuration of the second floor.
The cl 4.6 written request advances two further environmental planning grounds. Firstly, that the height, bulk and scale of the development is consistent with the existing and likely future character of the area and compatible with adjoining development, and development in the locality along the foreshore. Secondly, that the development achieves the objects of s 1.3 of the EP&A Act in: representing good design; and facilitating the proper construction of buildings, including the protection of the health and safety of their occupants.
As established in Initial Action at [24], "The environmental planning grounds advanced in the cl 4.6 written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole." These two final grounds presented by the Applicant speak to the development as a whole, and do not justify the contravention. There is no link between these stated benefits and the contravention of the height development standard so as to 'justify' that contravention.
On this basis, I am not satisfied that any of the environmental planning grounds advanced in the cl 4.6 written request are sufficient to justify the contravention of the height development standard.
Given that the development application does not meet this jurisdictional test, there is no utility in considering the further contentions raised in these proceedings.

Findings

Pursuant to cl 4.6(4) of NSLEP, development consent must not be granted for development that contravenes a development standard unless I, in exercising the functions of the consent authority, am satisfied that the Applicant's cl 4.6 written request has adequately addressed the matters required to be demonstrated by subclause (3). For the reasons given in this judgment, I am not satisfied that the cl 4.6 written request adequately meets this test. As this is a matter of jurisdiction, I am subsequently unable to grant consent to this development application.

Orders

The Court makes the following orders: 1. The appeal is dismissed. 2. Development application DA56/20 for the demolition of an existing dwelling and garage and the construction of a new dwelling and double garage, with associated tree removal and earthworks on the land at 58 Cowdroy Avenue, Cammeray, is determined by way of refusal. 3. The exhibits are returned, with the exception of Exhibits 1, A, B, D, E and F.

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: 07 June 2021

(2018) 236 LGERA 256

(2007) 156 LGERA 446

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