[2018] NSWLEC 118
Wehbe v Pittwater Council (2007) 156 LGERA 446
Source
Original judgment source is linked above.
Catchwords
[2018] NSWLEC 118
Wehbe v Pittwater Council (2007) 156 LGERA 446
Judgment (4 paragraphs)
[1]
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.
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] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). 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 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 height of buildings development standard as a justified response to providing access to the communal area on the roof of Block B. The written request details how the elements that exceed the standard do not result in any amenity impacts on the public domain or surrounding development. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].
[2]
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.
[3]
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.
[4]
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Decision last updated: 21 February 2025
Parties
Applicant/Plaintiff:
Hanna
Respondent/Defendant:
The Hills Shire Council
Cases Cited (6)
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.