Green Wall Property Developers Pty Ltd v Woollahra Municipal Council

Height of Buildings

1. The proposed development exceeds the height of buildings standard under cl 4.3 of the LEP. The height of buildings standard is 9.5m. The maximum height of the building is 12.4m, contravening the standard.
2. The applicant is seeking an exception to compliance with the development standard under cl 4.6 of the LEP. In accordance with cl 4.6(3) of the LEP, the applicant has filed a written request to vary the building height standard, which was prepared by GSA Planning and dated August 2020.
3. I have reviewed the request and other matters related to whether the permissive powers of cl 4.6 of the LEP should be available. I am satisfied in regard to the matters listed below, as explained.
4. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case (cl 4.6(3)(a) of the LEP). It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request adopts the first "Wehbe way", showing how, otherwise, the development, relevantly, achieves the objectives of cl 4.3.
5. I reproduce the list of objectives of the clause below: (a) to establish building heights that are consistent with the desired future character of the neighbourhood, (b) to establish a transition in scale between zones to protect local amenity, (c) to minimise the loss of solar access to existing buildings and open space, (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, …
6. For me, both objectives (a) and (b), are the kind of development standard objective considered in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 ('Baron') to be "explanatory of the purpose of the … development standard" (Baron at [32]). Objective (a) explains how certain building height controls (i.e. the pertinent development standards) are established. That is to say, objective (a) is already achieved. Similarly, objective (b) is also achieved with the varying height controls in the LEP building height maps near zone boundaries.
7. To the extent that it is relevant, I accept the written request's position that the proposed development has considerable points of consistency with the desired future character of the neighbourhood having regard to the separation between building modules, stepping back at the upper level and interface with neighbours and the public domain, including via landscaping. However, in my view, objectives (a) and (b) are not placed under threat by the proposed development and, in this case, the test of the first Wehbe way needs to concentrate on objectives (c) and (d).
8. The written request shows how the proposed development appropriately maintains solar access, views, visual intrusion and privacy. On this basis, the written request adequately demonstrates objectives (c) and (d) are achieved notwithstanding the contravention of the development standard.
9. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case through satisfying the requirements of the first Wehbe way.
10. While it has no consequence given the above finding, I note that the written request sought to demonstrate that the third Wehbe way was also satisfied. The third Wehbe way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required (Wehbe at [46]). This was not adequately demonstrated in the written request in my opinion.
11. The written request outlines certain environmental planning grounds seen as justifying the contravention. The planning grounds of particular pertinence to me, in the written request, are in respect to how the building responds to the steep topography and allows neighbouring (higher) properties to look over the building without affecting their views. I am satisfied that the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard.
12. Together the above findings mean the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LEP. It follows that the test of cl 4.6(4)(a)(i) is satisfied.
13. I now turn to the test at cl 4.6(4)(a)(ii) of the LEP.
14. I rely on the written request's demonstration that the proposed development is consistent with the objectives of the applicable height standard.
15. The zone objectives are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for development that is compatible with the character and amenity of the surrounding neighbourhood. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
16. I find the proposed development consistent with the objectives of the R2 Low Density Residential zone in the LEP. This is because the proposed development provides upgraded residential accommodation within the existing low density residential environment, consistent with the first zone objective. Through its architectural and landscape design, the proposed development gives good consideration to the amenity and character of the surrounding neighbourhood, consistent with the third objective. The second zone objective is not relevant.
17. The proposed development will be in the public interest because it is consistent with the objectives of the building height standard and the objectives for development within the R2 Low Density Residential zone. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of the LEP are met.
18. The states of satisfaction required by cl 4.6 of the LEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the building height control.

(2007) 156 LGERA 446

[2019] NSWLEC 61