Hajek v Sutherland Shire Council

Land and Environment Court (NSW)|2021-09-03

Judgment

COMMISSIONER: Development Application DA20/0125 was lodged with Sutherland Shire Council on 26 February 2020 seeking consent for alteration and additions to an existing residential flat building. The Council refused consent and the applicants are appealing the determination pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

The proposal

The proposal involves the construction of an L-shaped pergola above an existing BBQ area in a rooftop area which forms part of the private open space allocated to a unit in the residential flat building.
The applicant has amended the plans from those submitted and considered by the Council by lodging them on the NSW Planning Portal on 3 September 2021, the day of the hearing. The Council seeks costs thrown away pursuant to the provisions of s 8.15 of the EPA Act. The applicant argues against costs on the basis that the experts considered the amended plans when joint conferencing.

The site and locality

The site forms one of two rooftop terraces atop a residential flat building and is part of Lot 13 in SP 98450 and known as Unit 402, No 131-133 Gerrale Street, Cronulla.
The residential flat building contains 13 apartments constructed over five floors with the rooftop terrace divided into two areas, both allocated as part of the private open space for the units directly below.
Each terrace area is fitted with a circular swimming pool approximately 1m above the finished roof level, a fixed BBQ preparation area, seating and planter boxes along the southern and western elevations that are in common property. Access to the rooftop areas is provided via a staircase centrally positioned along the southern elevation that links all levels within the building.
The site is located at the corner of Gerrale Streets and Ewos Parade and contains the residential flat building described above and initially approved by the Council in 2016 and modified on three subsequent occasions. The whole of the development was compliant with the 16m height of buildings development standard.
From the evidence it is apparent that the final configuration of the pool area and the landscape treatment differs from that approved under the most recent modification. That modification was dated 22 November 2017. A glass balustrade and stairway have been erected adjacent to the pool, that balustrade exceeding the height of buildings development standard.
The landscaping that has been installed within the planter boxes does not accord with the approved landscaping plan. The majority of the approved planting, in particular the planting with the most impact on views is Westringia 'Mundi' or Dwarf Coastal Rosemary. According to the approved plan, that plant has a maximum height of 600mm. Three Doryanthes excelsa or Gymea Lilies are also shown on the plans adjacent to the access stairway. Those are shown as having a mature height of 1-2m and planted in a group.
The planting observed within the planter box comprises a mix of succulents and cactus species. Groupings of three of the planting already exceed the 600mm nominated height however the remainder have not reached that height to date.
Surrounding development comprises a mix of housing ranging from single storey dwelling houses to multi storey residential flat buildings. The flat buildings range in height from two to seven storeys with higher buildings at the beachfront and closer and within the Cronulla CBD. The site is adjoined to the immediate west and south, by residential flat buildings that have at grade parking and three storeys above.
The residential flat building occupied by an objector to the proposal is a taller building comprising six residential storeys above at grade garages and an additional storey for the lift overrun. It is separated from the site by two blocks of units, both three storeys above garages and is to the south of the site.

Planning controls

The site is zoned R4 High Density Residential pursuant to the provisions of Sutherland Local Environmental Plan 2015 (LEP) and the proposed development is permissible with consent in that zone.
The objectives of the R4 zone are set out in cl 2.3 of the LEP as follows: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage the supply of housing that meets the needs of the Sutherland Shire's population, particularly housing for older people and people with a disability. • To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features. • To minimise the fragmentation of land that would prevent the achievement of high density residential development.
Clause 4.3 establishes maximum building heights and provides for a maximum height of 16m.
The height of the pergola is 2.460m above the finished terrace level making the maximum height of the proposal at 18.225m, therefore exceeding the building height development standard by 2.225m. The applicants rely on a request to vary this development standard, pursuant to the provisions of cl 4.6 of the LEP.
During the hearing, the applicant advised that it could reduce the maximum height by a further 100mm and still achieve compliance with the relevant provisions of the Building Code of Australia. It was proposed this change be addressed through a condition of consent.
Clauses 6.16 and 6.17 of the LEP require consideration of Urban Design issues in determining whether consent should be granted. Those matters are as follows: 6.16 Urban design - general (1) In deciding whether to grant development consent for any development, the consent authority must consider the following - (a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development, (b) the extent to which any buildings are designed and will be constructed to - (i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and (ii) contribute to the desired future character of the locality concerned, (c) the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain, (d) the extent to which the natural environment will be retained or enhanced by the development, (e) the extent to which the development will respond to the natural landform of the site of the development, (f) the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas, (g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles. 6.17 Urban design - residential accommodation In deciding whether to grant development consent for development for the purposes of residential accommodation the consent authority must consider the following - (a) the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire, (b) the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised, (c) the extent to which the quality of the streetscape concerned will be improved by the development, (d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities, (e) the extent to which any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, will be minimised, (f) the extent to which the residential accommodation concerned integrates with a well-designed landscaped setting, (g) any opportunities for the provision of affordable housing.
Sutherland Development Control Plan 2015 (DCP) is also relevant to determination of the application with Chapters 6 - Residential Flat Buildings and 34 - Ancillary Development particularly relevant.

The contentions

The contentions in the case are whether the height of the proposed development is acceptable having regard to the design and position of the structure in terms of its height, obstruction of views and vistas, overshadowing and visual impact; whether the proposal minimises the impact of new buildings on adjoining or nearby properties from view loss; whether the written request lodged pursuant to the provisions of cl 4.6 of the LEP should be allowed and whether adequate information has been provided to determine the impact of the proposed structure of the amenity of adjoining apartments and the associated open space due to overshadowing.
Following the joint conference and agreement between the experts regarding the acceptability of shadow impacts, the Council does not press the last contention.

The evidence

A site view was conducted to allow the Court to determine the impact of the proposal on view loss from an objector's property and to gain an understanding of the context of the site and the form of current and future development anticipated under the planning controls. Those controls provide for higher buildings than are currently located in the locality (16m consistent with the building height development standard) and would be similar to the form of the building on the subject site.
Expert planning evidence was heard from Mr J Mead for the applicant and Mr G Apps for the Council.
They agree that the proposal exceeds the maximum building height by 1.9m, an 11.88% variation. That would be 1.8m if the Court were to accept the reduced height offered by the applicant.
The experts also agree that the pergola will not read as an additional level of the building due to the structure being set in from the sides of the building and having an open form. They also agree that the streetscape and character impact of the proposal is acceptable, as the structure will not be readily visible from many street level vantage points in the public domain and where it is it will read as a recessive element.
In relation to precedent, the experts agree that approval of the pergola would not necessarily create a precedent for similar structures as all applications would need to be considered on their individual merits. In particular, if the owner of the adjoining roof top terrace sought to carry out a similar development, it would be necessary to consider the height, scale, form and view loss that resulted from that proposed pergola.
The experts agree that the Clause 4.6 variation request demonstrates that the proposal satisfies the objectives of the R4 Zone, that the proposal does not result in excessive bulk impacts given that the structure is lightweight and views through it are possible. Setbacks are also considered acceptable when assessed under the DCP provisions.
There is no agreement in regard to the height of the structure and its view impact.
In relation to cll 6.16 and 6.17 of the LEP, they agree relevance is limited to view loss.
In relation to view loss, the experts agree that view loss is in contention in relation to the apartment at 16/9-11 Gerrale Street only. That is, view loss is an issue for an individual apartment at one level of one neighbouring building. This view is across a side boundary and that apartment has views available that are not across the side boundary. It is a kitchen and dining room view affected, but only a small percentage of that view. Substantial views are available to the apartment.
The experts agree that the relevant views from the objector's apartment are obtained from both a sitting and standing vantage point within the kitchen, dining area of an open plan dining/living area and from the end of the east facing a balcony. They also agree that views of a beach land/water interface are those to the north. They agree the primary view from the balcony is to the east (along its long edge) rather than north off the narrow side edge of the balcony.
They agree that the objector's apartment achieves expansive views from Cape Solander and Greenhills Beach to the north, along Wanda and Elouera Beach to Cronulla. Views to the northeast and east are interrupted by existing buildings however the horizon is mostly visible. Views towards Windy Point, Jibbon Beach and Jibbon Head are obtained to the south and southeast. They agree that the impact on this overall view in percentage terms is insignificant.
It is also agreed that land/water interface views of the beach at North Cronulla, 'The Wall' and Elouera, which are closer views than the view that is affected by the proposal, are available. These views take in the wave zone at the beach. It is agreed that views above and through the proposed pergola will also continue to take in the wave zone which is a desirable element of the land/water interface view. Accordingly, the impact on the quality of the view is insignificant.
In terms of the views affected by the proposal the experts agree that the original plans resulted in an interruption of the views to a part of the land/water interface of Greenhills Beach due to the height of the east-west cross beam along the northern side of the structure. The amended plans that are now before the Court remove that impact and maintain the land/water interface from a standing position within the dining room of the objector's property. The experts agree that the reduction in height as proposed in these plans reduces that impact and maintains the land/water interface from a seated position within the dining room, though they disagree to the extent. They also agree that the view loss will be limited to the solid components of the structure itself with views remaining over and through the structure and to either side of it.
In regard to the existing landscaping within the planter boxes, the experts agree that this 'overlaps' in impacting on views whereby two of the plants are currently close to the height to the proposed structure, impacting land/water interface views. It is likely that other landscaping within the planter will continue to grow and may result in further view impacts over time. They note the owner of the subject property has temporary shade structures, (umbrellas) located on the rooftop which have some impact in their close position and would have impacts in their open position.
There is no agreement in relation to the reasonableness of the view loss.
Having regard to the matters raised in submissions received by the Council in response to notification of the application, the experts agree that the proposed structure does not result in unreasonable overshadowing, is not considered excessive in terms of bulk and scale, is not considered to offend the aesthetics of the existing building noting the colours and materials proposed to be used, can be engineered to withstand high winds and does not create additional living space noting that an approved entertaining area already exists on the rooftop.
The proposal does not propose walls on the sides of the structure or any additional lighting and is not considered to increase noise, noting that the approved entertaining area already exists on the rooftop. They agree there is nothing to confirm that the structure would adversely impact property values; that the replacement of the heritage kerbing is not a matter that is relevant to the application and, the absence of the pergola structure from the original development application does not preclude the consideration of the proposed structure.
Mr Apps has considered the written request prepared by Mr Mead in response to the provisions of cl 4.6 of the LEP regarding variation to the building height development standard and says there are not sufficient environmental planning grounds to justify the exceedance of the height control; that the objectives that underpin cl 4.3 of the LEP are not met and it has not been demonstrated the proposal is in the public interest.
Mr Mead, as author of the written request pursuant to cl 4.6, relies on the content of that document. In summary he notes that Mr Apps' only amenity concern with the proposed height breach is view impact. That is, the proposal only fails the objectives of the height control because of view impact. Mr Mead considers that that impact is acceptable and notes the agreement between the experts that the proposal is acceptable in terms of privacy, overshadowing, noise, aesthetics and streetscape impact.
Mr Mead also notes the agreement that the proposal will directly benefit the occupants of the subject apartment. He says these benefits cannot be realised with a compliant scheme given the existing floor level of the rooftop. Accordingly, the planning grounds put forward are directly related to the breach. Further the impacts of the bridge are minimised through the design of the structure. In particular it is a lightweight, open structure which allows views through and minimises visual and view impacts. He concludes the proposal has planning benefits for the development and impacts of the noncompliance have been minimised and are acceptable.
Mr Mead considers the proposed height breach to be minor being only 1.9m (or 1.8m if conditioned to reflect the applicant's offer) or 11.88% and only applies to the proposed pergola structure, which is modest in scale and located, set in from the sides of the existing roof terrace. The potential impacts of the breach have been suitably mitigated through the careful design of the structure, being slim line, lightweight and unenclosed. It has been sized and located so as to minimise impacts and the structure will have no adverse impact on the streetscape as from most vantage points in the public domain it is either not visible, or is viewed at a distance, integrated with the building design and existing landscape on the rooftop.
Mr Apps accepts the majority of this opinion however says the impact of the structure on views has not been minimised.
Both experts agree the proposed pergola will provide sun protection and enhance the usability and amenity of the rooftop terrace. Mr Apps notes the terrace as an approved feature of the building and was approved without structures that exceeded the height limit. In fact, the application was reduced in height to meet the prescribed height development standard. They also agree that the Apartment Design Guide (ADG) encourages roof terraces and whilst Mr Mead contends the proposal will result in the design of the terrace space being made more useable and of higher amenity, Mr Apps says this is not a planning ground that relates to the subject height breach as the development could have incorporated such structures in a compliant scheme, noting it is not possible to now provide a compliant structure given the building has already "maxed out" the height.
Mr Mead says the proposed development will negate the need for occupants of the property to utilise temporary umbrellas/awnings on the rooftop for solar protection. These temporary umbrellas do not require planning consent and, once opened, have a larger visual presence on the site and surrounds. Thus, he says, the proposed pergola will provide an enhanced impact on the character an amenity of the locality over and above these temporary structures by being carefully designed to integrate with the building. Mr Apps says the umbrellas are a temporary device that add amenity to the rooftop space when it is in use and are able to be folded away when not in use, removing or minimising any visual or view impact they may have when open. He says the umbrellas are able to be moved to where they are needed most and considers the umbrellas to be an appropriate means for providing amenity to the rooftop terrace.
Having regard to the objectives of the building height development standard set out in cl 4.3 of the LEP, the experts agree that all of these objectives are met with the exception of the need to minimise the impacts of new buildings on adjoining or nearby properties from loss of views. Mr Mead says the proposal does achieve this objective whereas Mr Apps does not.
Mr Mead says the view impact is acceptable and relies on his written request pursuant to the provisions of cl 4.6 of the LEP. In particular he says the view is across a side boundary and an intervening property; the objector's property enjoys expansive views from various positions within the apartment and its balcony to the north, east and southeast and most of these views are not affected by the proposal. Views over and through the proposed structure will remain. The effect of the proposal will be negligible, considered both in isolation and totality and, even if he is wrong in that appraisal and the view impact is considered minor or moderate he maintains that the impact is acceptable because the substance of the actual impact when considered as part of the view in totality remains acceptable. He says the overall context of views from the apartment is sporadically broken or interrupted by buildings and vegetation and therefore the context of the view will not be significantly affected as if it were an unbroken view. In percentage terms the view loss is minor and the area affected is not a superior view to others enjoyed by the property, in fact closer land/water interface views of the beach are available. He considers the proposal is skilfully designed to minimise view impacts as it is a lightweight slim line structure open on all sides and is the minimum necessary to serve its shading function. He notes that the prime views from the main living area and balcony of the dwelling owned by the objector to the east are unaffected by the proposal and reiterates the development will enhance usability of the existing roof terrace and to require strict compliance with the building height development standard would negate the ability to provide any structure and therefore the same amenity would not be afforded to the applicant. He considers it reasonable to enable some covering of a roof terrace space from an amenity point of view. He maintains the proposal has minimised impacts on view because only one apartment is affected by the development.
Mr Apps says that the sweep of the view impact is approximately 4.5 degrees and the overall view impact from the view obtained from the objector's apartment, which he estimates is approximately 258 degrees, is only impacted by 1.7%. He says the affected view is that view framed by the pine trees to the west and the older, white residential flat building to the east. In terms of the impact on that view corridor the impact is around 16.25% and whilst the impact overall may be negligible, the impact on the continuity of the view of the beaches of Bate Bay, being the more highly valued view of the land/water interface is in his view moderate. He says the view loss is the result of non-compliance with the building height development standard contained in the LEP and therefore the view loss is not reasonable because of that fact and because there are other means of achieving shaded open space for the apartment with the views impacted being highly valued beach views with a land/water interface.
In relation to the offer of a 100mm reduction in the height of the pergola, Mr Mead said this would further improve the views available from the objector's property whereas Mr Apps says the impact is from the longitudinal elements of the pergola which would still have an impact on the wavezone.

Conclusion and findings

Clause 8.15(3) of the EPA Act applies to costs and is in the following form: If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies.
The applicant objected to a costs order submitting that the experts had based their joint conferencing on the amended plans. No argument was made whether the amendment was minor. Accordingly, there can be no finding on this issue and costs must be awarded. Those costs were not agreed at the time of the hearing however, subsequent to conclusion of the hearing the Court was advised the parties had agreed on the amount of $2,000. I consider that would be a reasonable amount in the circumstances.
Clause 4.6 of the LEP imposes a precondition to a consent authority exercising the power to grant consent to development on land to which the clause applies and if I am not satisfied that the provisions of the clause are met, consent cannot be granted.
Clause 4.6 is in the following form: (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 Secretary has been obtained. (5) In deciding whether to grant concurrence, the 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 Secretary before granting concurrence……………….
This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3) and the fourth, that 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. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.
Having regard to the evidence and in particular to the written request prepared, I am not satisfied that compliance with the development standard is unreasonable and unnecessary nor am I satisfied that there are sufficient environmental planning grounds to justify contravening the development standard.
The written request relies on the first test in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 that is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.
The objectives of the Height of Buildings Development Standard are as follows: (a) to ensure that the scale of buildings - (i) is compatible with adjoining development, and (ii) is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and (iii) complements any natural landscape setting of the buildings, (b) to allow reasonable daylight access to all buildings and the public domain, (c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion, (d) to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves, (e) to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings in those zones, (f) to achieve transitions in building scale from higher intensity employment and retail centres to surrounding residential areas.
I am satisfied that the written request demonstrates that the objectives have been met with the exception of objective (c). It is important that the assessment is made the development that is the subject of the development application. That development is the pergola which would be located on the rooftop terrace of an existing residential flat building.
Mr Mead's written request addresses objective (c) in the following way: "It is acknowledged that the proposed development will have a negligible impact on ocean views through and over the site from unit 16/9-11 Ewos Parade. However, the view impacts are reasonable and have been minimised through the careful design of the proposed pergola."
A view analysis referencing the four step assessment described in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 is then conducted.
Whilst I accept the pergola is a light weight structure, the impact of that structure on the views to the Bates Bay beaches has not been minimised. The longest section of the structure intrudes into the wave zone of the beach. I accept Mr Apps' opinion that while the impact on the overall view from the apartment, which has panoramic views, may be negligible, the impact on the continuity of the view of these Bates Bay Beaches, being the more highly valued views, is moderate. The impact is also caused by the non-complying element of the structure, all of which with the exception of the lower 1m post section, is above the building height control.
I also accept that the views are views obtained across a side boundary however, because the objector's property sits above the maximum building height control, they are views that could be expected to be maintained. Accordingly, I cannot find that the construction of the pergola structure in the form proposed can be said to minimise the impacts of that new building on adjoining or nearby properties from loss of views and for that reason, I do not find that the written request has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
The second test is that there are sufficient environmental planning grounds to justify contravening the development standard. Mr Mead's written request provides a number of reasons which he says provide such justification. These are summarised as follows:

The proposed height breach is minor, being 1.9m or 11.8% and only applies to the pergola structure which is modest in scale, set in from the boundaries and potential impacts are mitigated through careful design;
The pergola will provide sun protection to an existing approved terrace and enhance the amenity of that space for occupants. It will enhance the useability, functionality and liveability of the rooftop area consistent with the objectives of the ADG;
The proposed development is compatible with the surrounding roofscape, is modest scale and form and will not be readily discernible when viewed from street level or a number of surrounding properties. Its slimline frame will ensure it is not out of scale with the existing residential flat building and not appear as an incongruous addition;
There is an absence of any material impacts on the amenity of the environmental values of the locality, the amenity of future building occupants and the character of the area;
There are no adverse overshadowing or privacy impacts;
The proposed development will have negligible and entirely reasonable impacts in respect of view sharing;
The proposed development will negate the need for occupants of the property to utilise temporary umbrellas/awnings on the rooftop for solar protection, structures that have a larger visual presence on the site and surrounds;
The objectives of the development standard and the R4 zone are met; and
The proposed development achieves the objects in s 1.3 of the EPA Act, specifically it promotes the orderly and economic use of land by enhancing an existing residential use and promotes good design and amenity of the built environment through a well considered design responsive to its setting and context.

Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 provides guidance on the application of cl 4.6(3)(b) where he states 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].
The focus of the environmental planning grounds must be on the aspect or element of the development that contravenes the development standard and why that contravention is justified on environmental planning grounds. As stated above, almost the entire pergola structure contravenes the development standard.
I am not satisfied that the reasons advanced by Mr Mead are sufficient in justifying the contravention of the building height development standard. The majority of reasons proffered relate to the merits of the application and the benefit of the structure to the occupants of the building. The other reasons go to the design of the structure and are not unique to the case, good design is anticipated in all development and the fact that this development may be well designed is not sufficient grounds to allow any variation to the height development standard.
The breach is not minor focussing on the element the subject of the application. All of the structure, other than the first 1m of the support posts is above the 16m height development standard and the greatest impact is in the area above the height control.
Similarly, the lack of amenity impacts, when assessed against the failure to minimise view loss, cannot be considered sufficient to allow variation of the standard. In this case, the use of temporary structures would be advantageous as they do not permanently impact views.
For these reasons, I am not satisfied, as required by cl 4.6(4)(a)(i) that the applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3),
I accept the common ground between the parties that the objectives of the R4 zone are met. Those objectives are as follows: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage the supply of housing that meets the needs of the Sutherland Shire's population, particularly housing for older people and people with a disability. • To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features. • To minimise the fragmentation of land that would prevent the achievement of high density residential development.

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: 17 September 2021

(2018) 236 LGERA 256

(2007) 156 LGERA 446

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Judgment (8 paragraphs)

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Cases Cited (8)