Hanna v The Hills Shire Council

Land and Environment Court (NSW)|2025-02-14

The applicant's written request to contravene the height of building development standard

The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.
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 [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; 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 height of buildings development standard on the bases that compliance is unreasonable or unnecessary because the elements which exceed the standard do not result in any visual impacts, do not generate any adverse amenity impacts and the overall form of the proposal is consistent with the desired future character of the R4 zone.

Conclusion

I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 5 February 2025 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Development Application No 357/2024/HA, as amended, for the demolition of existing structures, tree removal, consolidation of lots and subdivision of the consolidated lot, and construction of a residential flat building in 2 buildings containing 68 units with ancillary landscaping, drainage and associated works on land legally described as Lot 101 and Lot 102 in Deposited Plan 617912, and Lot 110 and Lot 113 in Deposited Plan 250610, and known as 119-121 Showground Road and 11-13 Sexton Avenue, Castle Hill, NSW, 2154, is determined by the grant of development consent subject to the conditions at Annexure A.

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: 21 February 2025

Contravention of the height of buildings development standard

The height of buildings development standard for the site is 27m pursuant to cl 4.3 of LEP 2019. The objectives of the height of buildings development standard, at cl 4.3(1) of LEP 2019, are: (a) to ensure the height of buildings is compatible with that of adjoining development and the overall streetscape, (b) to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas.
The proposal, as amended, is generally complaint with the building height control, save for minor exceedances for the lift overruns, which are a maximum of 1.2m at the lift overrun of Block B.
The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by The Planning Hub.
Clause 4.6(3) 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(3). The consent authority, or the Court on appeal, must be satisfied that, (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

(2018) 236 LGERA 256

(2007) 156 LGERA 446

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Cases Cited (6)