The applicant's written request to contravene the FSR 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 [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 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).
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]).
The applicant's written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary because the existing building exceeds the FSR for the site and there is a 2.9% increase to FSR arising from the provision of a lift and a storage cupboard. This increase is nominal.
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 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]).
The consent authority or the Court on appeal does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) (Initial Action at [25]).
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 development standard on the basis that the FSR development standard is significantly exceeded by the existing heritage item and the development represents only a very small increase in GFA resulting from the provision of a lift and a cupboard. Furthermore, the site coverage is not changed by the development.
[2]
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 development is in the public interest because it is consistent with the objectives of the zone and the development standard, for the reasons given in the written request to vary the FSR development standard, including that the FSR is already non-compliant and as such the building bulk, form and scale is unchanged except for the lift core and the storage area on the first floor, which are incorporated so that there is no change to the building envelope of the existing dwelling and the proposed development provides an improves balance between landscaped area and built form with a 7.6% increase in landscaped area.
[3]
Heritage Impact
56 Ballast Point Road, Birchgrove is listed as a local heritage item (Item 517, Schedule 5, LEP 2013).
Pursuant to cl 5.10(4) of LEP 2013, I have considered the effect of the proposal on the heritage significance of the heritage item and I am satisfied that the proposal is consistent with the objectives of the heritage conservation clause of LEP 2013, at cl 5.10(1), because the lift and storage cupboard are located in the contemporary rear additions of the dwelling.
[4]
Orders
The orders of the Court are:
1. The applicant is granted leave to amend the application by relying on the amended plans listed in Condition 1 of the conditions of consent at Annexure A.
2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs agreed of $1,000.00 within 7 days of the date of these orders.
3. The appeal is upheld.
4. Development Application No. D/2017/587 to carry out alterations and additions to the existing dwelling house on the land known as 56 Ballast Point Road, Birchgrove, is approved, subject to the conditions of consent at Annexure A.
Susan O'Neill
Commissioner of the Court
Annexure A (138 KB)
[5]
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: 24 July 2019
Parties
Applicant/Plaintiff:
Gransasso D'Italia Pty Ltd
Respondent/Defendant:
Inner West Council
Cases Cited (3)
Contravention of the floor space ratio (FSR) development standard
The existing dwelling and the proposed development have a total floor space ratio (FSR) of 1.42:1. The proposed development represents a 2.9% increase in FSR, or 8.03m2 of additional gross floor area (GFA). The FSR development standard for the site is 0.9:1.
The applicant provided a written request seeking to justify the contravention of the FSR development standard.
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] 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) (Initial Action at [29]).