[2018] NSWLEC 118
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446
Source
Original judgment source is linked above.
Catchwords
[2018] NSWLEC 118
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446
Judgment (9 paragraphs)
[1]
The applicant's written request to contravene the height of buildings development standard
The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:
"(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard."
The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ("Wehbe") and repeated in Initial Action at [17]-[21]:
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. the 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; and
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).
Hall Street A Pty Ltd v Waverley Council [2020] NSWLEC 1235 | Case summary | Zoe
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 height of buildings development standard on the basis that compliance is unnecessary because the gross floor space permitted under the FSR development standard of 2:1 is compliant and has been distributed on the site so as to retain the cottage on the site identified as a local heritage item; and the underlying objective or purpose of the standard would be defeated or thwarted if compliance was required and therefore compliance is unreasonable because enforcing strict compliance with the development standard would provide an undesirable heritage outcome by relocating the upper level gross floor area above the heritage item.
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]).
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). I am satisfied that the applicant has demonstrated that compliance with the height of buildings development standard is unreasonable or unnecessary because the relevant objectives of the development standard are achieved notwithstanding non-compliance with the standard. I am satisfied that justifying the aspect of the development that contravenes the development standard as an alternative configuration of the building envelope on the site (based on the permissible gross floor area) in order to retain and preserve the significance of the local heritage item can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23] because it promotes the economic use and development of the land and the sustainable management of built heritage. I am satisfied that the environmental planning ground is sufficient justification for the volume of the proposed development that is above the height of buildings development standard.
I do not accept the applicant's reasoning that the underlying objective or purpose of the development standard would be defeated or thwarted if compliance was required, so that compliance is unreasonable. The applicant's reasoning using the third Wehbe way has prioritised achieving the maximum complying gross floor area in the development over retaining the heritage item and there is no justification for this approach. Had it not been possible to arrange the compliant gross floor area on the site in the form of a building envelope that retains the heritage item and adequately responds to the individual opportunities and constraints of this site, the development would not be able to realise all of the gross floor area under the FSR development standard without adequately justifying the demolition of the heritage item.
[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 accept the agreement of the parties that the relevant objectives of the height of buildings development standard are:
"(a) to establish the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces…
(d) to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public spaces."
I accept the applicant's submission that the preservation of the environmental amenity enjoyed by the neighbouring properties is a goal of the development standard itself and is not a threshold test to be applied to the aspect or element of the development that contravenes the development standard. To interpret the objective as specifically applying to the aspect of the development that contravenes the development standard would impose a requirement that any breach of the development standard must have a neutral or beneficial effect relative to a compliant development so as to achieve the "preservation of environmental amenity" for a neighbouring property. One difficulty with such an interpretation is that there are often numerous compositions for a compliant building envelope which each have different amenity impacts on various neighbouring properties and so which one should be the basis for the neutral or beneficial effect test of the aspect of the development that contravenes a development standard?
A very minor increase in the overshadowing of the upper storey of the street front façade of the retail building at 38 Hall Street at 9am on the winter solstice (Ex A, dwg AO475 Rev D), which leaves the upper storey of street front façade in full sunlight by 10am, is not, contrary to the evidence of the Council's expert, lead to a conclusion that the proposal is inconsistent with objective (a) of the development standard. The minor additional overshadowing by the proposal of the upper storey street front façade of 38 Hall Street, just above the awning at 9am on the winter solstice, does not unreasonably impinge on the amenity of that property because the upper storey street façade remains in full sunlight for the rest of the day.
I am satisfied that the proposal is consistent with the zone objectives, because it integrates retail, commercial and residential uses on the site and the heritage item is to be changed to a commercial use.
For the reasons set out below, I am satisfied that the proposal is consistent with the relevant objectives of the development standard because the proposal achieves a high standard of architectural design that is responsive to the unique opportunities and constraints of its site and context.
[3]
Design excellence
I accept the agreement of the parties that the proposal does not detrimentally impact on view corridors.
I accept the agreement of the planning and urban design experts that this section of Hall Street is predominantly three storeys, but does contain some elements of four-storey forms with a similar height as the proposal, including the four-storey podium of the Adina development to the north-west of the site. Based on the height of buildings development standard and the diagram A in Annexure E3-3 of DCP 2012 (reproduced at [23]), the desired future character of the Hall Street Town Centre is a street wall of three storeys with a parapet and a fourth storey over setback from the street façade. I do not agree with the evidence of the Council's planning expert that "a recessive setback upper level is a fundamental flaw" of the proposal. He later acknowledges in his evidence that the "upper level is setback" (Ex 3, p 9). I accept the evidence of the Council's planning expert that the front portion of the proposal is consistent with the existing and desired future Hall Street context (Ex 3, pp 11 and 13).
I am satisfied that the proposal on the north-western side of the site fronting Hall Street is consistent with the desired future character of the Hall Street Town Centre, while being responsive to its immediate context, by providing a three-storey street wall in the form of the balconies and a fourth storey setback from the street wall. The setback of the street-front façade appropriately responds to the existing setback of its immediate neighbour at 49 Hall Street. The alignment of the street wall is created by the cantilevered balconies. In this way, the design of the proposal has considered and responded to the generic diagram A in DCP 2012 as well as the built form in the immediate context of the site.
I accept Mr Dickson's evidence that the proposal provides a transition to the south-east development by wrapping behind the heritage item. The context analysis of horizontal expression provided by the architect (Ex A, Dwg A0022 Rev C) demonstrates that the proposal fits neatly into the street wall elevation of Hall Street.
I am satisfied that the proposal, as documented in the application, exhibits a high standard of architectural design, materials and detailing appropriate to a shop top housing development and the heritage item. I am satisfied that the form and external appearance of the proposal will improve the quality and amenity of the public domain.
[4]
Setbacks and amenity impacts
I accept Mr Dickson's evidence that the proposal achieves the objectives of the ADG for building separation and that the proposal will achieve a reasonable level of visual and acoustic privacy for the future occupants and neighbouring residents, consistent with the established character of the Hall Street Town Centre which is a vibrant and popular urban centre. The proposal includes a step back in the built form on the fourth storey at the rear, consistent with the stepping sought by the DCP control, and the inclusion of privacy screens and increased deep soil landscaped areas will assist with providing a transition in scale from the medium density residential development to the rear of the site.
I am satisfied that the applicant has adequately demonstrated that the adjoining property to the south-east can be redeveloped with a building envelope that maximises the development potential of that property and achieves a reasonable level of solar access for an adjoining development in an urban context with the benefit of borrowed amenity above and overlooking the heritage item (Ex 3, Annexure C).
[5]
Landscaping at the rear of the site
The rear of the site has an ideal orientation to the north-east. I am satisfied that the orientation of most apartments within the proposal to the north-east achieves a high level of amenity in terms of solar access, including for those apartments on the Lower Ground Floor. The two larger apartments on the Lower Ground Floor benefit from two orientations. The landscaping at the rear of the site will enhance the privacy and sense of separation from surrounding development.
[6]
Disputed conditions
I accept the applicant's submission that the two conditions sought to be imposed on any consent, quoted above at [7], are intended to force the proposal be consistent with the diagrammatic section "A" in DCP 2012 reproduced at [23]. The proposal aligns the street façade of the portion of the development on 45 Hall Street with the neighbouring building's street façade at 49 Hall Street and locates balconies on each level projecting from the street façade, instead of locating the street façade on the property boundary as shown in the diagrammatic section "A". The purpose of the conditions is to locate the street façade on the boundary with recessed balconies behind the façade.
The changes envisaged by the conditions are a consequence of the slavish application of the diagrammatic section "A" in DCP 2012 labelled merely as "typical" built forms for four storey centres. The proposal successfully achieves the intent of the diagrammatic section "A" by extending the development to the street boundary and reinforcing the established street wall on 45 Hall Street, which is then appropriately broken to reveal the refurbished heritage item as a stand-alone building setback from the street wall. This is an urban design cue used throughout the ages to signal and defer to a symbolic place.
The high standard of the design of the proposal would be undermined and compromised by the changes envisaged in the conditions, because the expression of the cantilevered balconies on the southern and eastern façades of the residential component of the proposed development would be confused by the extension of the walls to the street boundary and the curved corners of the balconies would be lost. The curve of the ground floor corner of the retail tenancy and the echo of this curve in the balconies over is an important feature of the design because it draws one into the site and reveals the heritage item as the focus of the break in the street wall. The curve of the corner is a deferential gesture to the heritage item, and it is lost by the changes to the proposal sought in the conditions.
The conditions quoted at [7] are deleted in the conditions of consent at Annexure A.
[7]
Conclusion
I am satisfied that the applicant's written request seeking to justify the contravention of the height of buildings development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) of LEP 2012; that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the numerical standard, and that there are sufficient environmental planning grounds to justify contravening the development standard. I am satisfied 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 parties agreed that the principle contention is the height of the proposal. I accept the applicant's justification that the development does not seek more floor space than what has been conceptually lost by the presence of the heritage item and that the maximum gross floor space can be achieved on this site as a consequence of the amalgamation of two properties and the careful arrangement of the building envelope so as to appropriately respond to and reveal the heritage item and respond to its urban context in a way that does not cause unreasonable amenity impacts on adjoining development and is consistent with the desired future character for the Hall Street Town Centre.
I have considered the effect of the proposed development on the heritage significance of the item pursuant to cl 5.10(4) of LEP 2012 and I am satisfied that the proposed development will enhance and reveal the identified significance of the original Federation sandstone cottage on the site. I am confident that the relationship between the heritage item and the new building will be a positive one because the new building provides a responsive and respectful backdrop to the original sandstone cottage.
I have considered the matters regarding design excellence pursuant to cl 6.9(4) of LEP 2012 and I am satisfied that the development as documented in the application achieves a high standard of architectural design, materials and detailing appropriate to its context.
[8]
Orders
The orders of the Court are:
1. The Applicant is granted leave to amend the application to rely on amended architectural drawings and a conservation schedule as listed in condition A.1 of the conditions of consent at Annexure A.
2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.
3. The appeal is upheld.
4. Development Application No. 391/2018 for the partial demolition of existing buildings, the retention, refurbishment and change of use of an building listed as a local heritage item and construction of a shop top housing development containing 17 units, 2 retail spaces and basement parking over two levels, at 43-45 Hall Street, Bondi, is approved, subject to the conditions of consent at Annexure A.
5. The exhibits, other than Exhibits 1, A and H, are returned.
[9]
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: 22 June 2020
Parties
Applicant/Plaintiff:
Hall Street A Pty Ltd
Respondent/Defendant:
Waverley Council
Cases Cited (6)
Contravention of the height of buildings development standard
The proposal has a maximum height of 17.05m at the lift overrun. The height above existing ground level ranges between 13.68m at the street frontage and 15.9m at the rear. The height of buildings development standard for the site is 13m.
The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by GSA Planning and dated May 2020 (Ex H).
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) 236 LGERA 256; [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) of the LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).