[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 (6 paragraphs)
[1]
Judgment
COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 936/2018 for the demolition of existing structures and construction of a 3 storey boarding house in two built forms containing 22 boarding rooms (including 1 manager's room, 6 double rooms, 13 single rooms and 2 accessible rooms), 1 communal living room, a communal courtyard and 5 bicycle spaces, over basement car parking containing 10 car parking spaces (including 9 resident spaces and 1 car share space), 5 motorcycle spaces, communal laundry, waste storage room, bulky goods area and services, and landscaping and associated works (the proposal), at 14 Borrodale Road, Kingsford (the site) by Randwick City Council (the Council).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 11 June 2020. I presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
The application is made pursuant to Div 3 Boarding Houses of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).
There are jurisdictional prerequisites that must be satisfied before the function of granting consent to the development application can be exercised, pursuant to cl 30A of SEPP ARH and cl 4.6 of Randwick Local Environmental Plan 2012 (LEP 2012).
Clause 30A of SEPP ARH is in the following terms:
30A Character of local area
A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
The site is zoned R3 Medium Density Residential pursuant to LEP 2012 and the objectives of the zone, to which regard must be had, are:
• To provide for the housing needs of the community within a medium density residential environment.
• To provide a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.
• To protect the amenity of residents.
• To encourage housing affordability.
• To enable small-scale business uses in existing commercial buildings.
The height of buildings development standard for the site is 9.5m (cl 4.3(2) of LEP 2012). The objectives of the development standard, at cl 4.3(1) of LEP 2012, are:
(a) to ensure that the size and scale of development is compatible with the desired future character of the locality,
(b) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item,
(c) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.
The existing character of the local area is informed by a mix of single and two-storey low to medium density residential developments including dwelling houses, semi-detached dwellings, residential flat buildings and multi-dwelling residential developments. I am satisfied that the amendments made to the proposal, including the changes to the form of the development fronting the rear laneway and the amendment of the roof to a pitched roof with rooms on the uppermost level within the habitable roof space, result in a development that is compatible with the existing and desired future character of the local area.
The maximum permissible floor space ratio (FSR) on the site is 0.75:1 (cl 4.4(2) of LEP 2012). Clause 29(1)(c)(i) of SEPP ARH provides that consent cannot be refused to a development to which Div 3 applies if the FSR is no more than 0.5:1 higher than the existing maximum permissible FSR. The proposed development, as amended, has a floor space ratio of 0.94:1, which does not exceed the maximum in cl 4.4(2) of LEP 2012 with the bonus under cl 29(1)(c)(i) of SEPP ARH.
The site is located within the vicinity of the listed item of local environmental heritage identified as "Edwardian timber cottage" at 24 Borrodale Road (Item No. I154) in Sch 5 of LEP 2012. I have considered the effect of the proposal on the heritage significance of the item pursuant to cl 5.10(4) of LEP 2012 and I am satisfied that the proposal will have no impact on the identified heritage significance of the item, because the proposal is consistent with the existing and desired future character of the locality.
I accept the Council's submission that the proposal satisfies the required matters under cl 6.3(3) of LEP 2012 on the basis of the Flood Impact Report prepared by ZAIT Engineering Pty Ltd (dated 30 March 2020, Issue B).
[2]
Contravention of the height of buildings development standard
The proposal has a maximum height of 10.1m and the height of buildings development standard for the site is 9.5m (cl 4.3(2) of LEP 2012). The applicant has provided a written request pursuant to clause 4.6(3) of LEP 2012 seeking to justify the contravention of the height of buildings development standard, prepared by Planning Ingenuity, dated 17 March 2020.
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) LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action at [29]).
[3]
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 [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]. 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]):
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).
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 unreasonable or unnecessary because the ground floor level has been raised above the natural ground level by approximately 0.75m to satisfy Council's flood planning requirements. The breach of the development standard is confined to the upper portion of the roof and there is no habitable floor space located within the volume of the proposal that contravenes the development standard.
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 [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 [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). The applicant's written request defends the exceedance of the development standard as a justified response to the constraint of the flood level on the site. 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 [23].
[4]
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 am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the zone, for the reasons given by the applicant in the written request.
[5]
Orders
The orders of the Court are:
1. The applicant is granted leave to amend the application to rely on the plans and documents listed in condition 1 of the conditions of consent at Annexure A.
2. The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $5,000.00 within 14 days of the date of these orders.
3. The appeal is upheld.
4. Development Application 936/2018 for the demolition of existing structures and construction of a 3 storey boarding house in two built forms containing 22 boarding rooms (including 1 manager's room, 6 double rooms, 13 single rooms and 2 accessible rooms), 1 communal living room, communal courtyard and 5 bicycle spaces, over basement car parking containing 10 car parking spaces (including 9 resident spaces and 1 car share space), 5 motorcycle spaces, communal laundry, waste storage room, bulky goods area and services, and landscaping and associated works, at 14 Borrodale Road, Kingsford, is approved, subject to the conditions of consent at Annexure A.
[6]
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Decision last updated: 17 June 2020