Hansimikali v Bayside Council

Judgment (5 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 the Chief Judge in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] (Wehbe) and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]):

the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

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]).
I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard, for the reasons given by the applicant in the written request. Consideration
The determination of the narrow dispute between the parties is focused on the contravention of the height of buildings development standard and broadly encompasses the merit issues raised by the Council regarding the desired future character of the Rosebery precinct, the privacy impacts resulting from the eastern terraces of the fifth level and the visual impact of the fifth level when viewed from the public domain.
I am satisfied that the proposal achieves a successful interface between the B2 and R2 zones. A transition in scale between zones should be achieved by the zoning and development standards in the LEP determined by the strategic planning exercise that informed the LEP and should not require an onerous transition in scale on an individual site that borders a different zone that significantly diminishes the development potential of that site. A proposal is no less entitled to rely on the terms of cl 4.6 to provide an appropriate degree of flexibility in applying a development standard simply because the site is located at the edge of a zone. This does not obviate the requirement for an assessment of the development in relation to its context and consequent amenity impacts once the hurdles of cl 4.6 are met.
I prefer Mr Mead's evidence that the significant distance between the eastern terraces on the fifth level and the backyards of the adjoining residential properties ensures that the presence of the eastern terraces on the fifth level does not pose an unreasonable privacy impact on the adjoining low density residential properties.
I prefer Mr Dickson's evidence that the fifth floor is appropriately recessive and deferential to the form of the four storey component of the proposal when viewed from the public domain so that it will not contravene the vision articulated by the desired future character statement for the Rosebery Neighbourhood Centre.
I accept the applicant's experts' opinion that the amended building envelope for the fifth floor has minimised the amenity impacts on adjoining development. The overshadowing specifically caused by the south-eastern corner of the fifth level late in the afternoon of the winter solstice falls on the roofs of residential dwellings in Walker Avenue and does not further reduce the amenity of the private open space of these dwellings when compared to a hypothetical four storey building envelope on the site.
The interface of the B2 zone and the potential building envelope arising from the development standards in the B2 zone, with the R2 zone, which has in this location small properties with backyards abutting the site, guarantees inevitable amenity impacts on the residential amenity of the low density residential dwellings on the western side of Walker Avenue. I am satisfied that this proposal has managed to minimise those amenity impacts.

Contravention of height of buildings development standard

The proposal has a maximum height of 16.4m to the top of the building and 17.2m to the top of the lift overruns. The height of buildings development standard for the site is 14m.
The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex C).
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] 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) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2013 (Initial Action at [29]).

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Judgment (5 paragraphs)

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Cases Cited (5)