[2004] NSWLEC 140
Wehbe v Pittwater Council (2007) 156 LGERA 446
Source
Original judgment source is linked above.
Catchwords
[2004] NSWLEC 140
Wehbe v Pittwater Council (2007) 156 LGERA 446
Judgment (3 paragraphs)
[1]
The Application - proposed variation to FSR and height of building
The Court heard oral evidence, which focused the experts' disagreement regarding environmental impacts of the Application to:
1. View impacts and view loss from a number of side windows at 25 Kimberley Street attributable to the proposed bulk, scale, density and resultant FSR of the Application.
2. Some reduction in solar access to the side window and clerestory at 31 Kimberley Street attributable to that portion of the proposal which exceeds the 9.5m height of building development standard set out at cl 4.3 of the WLEP.
Ultimately, it is these impacts that prove to be a fatal weakness of the Application since they follow the proposed variation of the height of building and FSR development standards, and are not adequately justified by the Applicant's separate cl 4.6 written requests.
Turning firstly to the cl 4.6 written request which seeks to justify the proposed departure from the development standard for FSR as set out at cl 4.4 of the WLEP. I have previously determined the site size to be 943.74sqm and the relevant FSR development standard to be 0.6:1.
The Applicant has prepared a cl 4.6 written request, forming part of Exhibit D in this matter. At pp 3-4 of the written request, Mr Karavanas calculates the total gross floor area of the Application to be 1,087.78sqm, and the resultant FSR therefore to be 1.15:1, a variance equivalent to 521.53sqm or 92% of the development standard.
I note that at pars 15-17 of the joint report (Exhibit 5) Mr McDonald sets out his reasons for assessing the proposed FSR as being excessive. These reasons were also summarised in his oral evidence and are primarily attributable to view impacts upon the neighbouring property at 25 Kimberley Street.
Consistent with cl 4.6(3) of the WLEP, the Applicant's written request seeks to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of this particular case, and that there are sufficient environmental planning grounds to justify the contravention.
Further, and following the planning principle established in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), the written request adopts Webhe way 1, seeking to establish that the objectives of the development standard are achieved notwithstanding the non-compliance.
Clause 4.6(4) of the WLEP then requires the consent authority to be satisfied the Applicant's written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.
In this case, the relevant objectives of cl 4.4(1) of the WLEP are:
(a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs,
(b) to provide an appropriate correlation between maximum building heights and density controls,
(c) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality,
(d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality.
Objective (d) of cl 4.4(1) places particular emphasis on the phrase "…preserve the environmental amenity of neighbouring properties…"
While I accept this phrase requires environmental amenity to be considered holistically and is intended to be able to facilitate change and allow amenity trade-offs, in the circumstances of this case I can discern no trade-offs, only a net reduction in amenity for the neighbouring property at 25 Kimberley Street attributable to the additional FSR sought and the view impacts it brings with it.
A more skilfully sited building form, with reduced bulk and scale (even if still exceeding the FSR development standard), may have delivered a net preservation of environmental amenity.
For this reason, I determine that the Applicant's cl 4.6 written request to vary the FSR development standard must fail.
For similar reasons, the cl 4.6 written request seeking to justify the departure from the development standard for height of building set out at cl 4.3 of the WLEP also fails.
I have previously determined the relevant height of building development standard to be 9.5m.
Pursuant to the WLEP, the Applicant has prepared a cl 4.6 written request, forming part of Exhibit D in this matter. At p 3 of the written request, Mr Karavanas calculates the maximum height of the Application to be 10.73m (but which I have determined to be 10.67m based on a close reading of Exhibit A, drawing DA201), and the resultant exceedance therefore to be equivalent to 1.17m or 12.3% of the development standard.
I note that at pars 1-14 of the joint report (Exhibit 5) Mr McDonald sets out his reasons for assessing the proposed height of building as being excessive. These reasons were also summarised in his oral evidence and are attributable to additional overshadowing to the neighbouring property at 31 Kimberley Street.
Consistent with cl 4.6(3) of the WLEP, the Applicant's written request seeks to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of this particular case, and that there are sufficient environmental planning grounds to justify the contravention.
Further, the written request adopts Webhe way 1, seeking to establish that the objectives of the development standard are achieved notwithstanding the non-compliance.
Clause 4.6(4) of the WLEP then requires the consent authority to be satisfied the Applicant's written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.
In this case, the relevant objectives of cl 4.3(1) of the WLEP are:
(a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views,
(b) to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth,
(c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land,
(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 space.
Objective (a) of cl 4.3(1) similarly places particular emphasis on the phrase "…preserve the environmental amenity of neighbouring properties…".
Again, while I accept this phrase requires environmental amenity to be considered holistically and is intended to be able to facilitate change and allow amenity trade-offs, in the circumstances of this case I can discern no trade-offs, only a net reduction in amenity for the neighbouring property at 31 Kimberley Street attributable to the additional height of building sought and the overshadowing it brings with it.
And similarly, I conclude that a more skilfully sited building form, with reduced height (even if still exceeding the height of building development standard in places), may have delivered a net preservation of environmental amenity.
For this reason, I determine that the Applicant's cl 4.6 written request to vary the height of building development standard must also fail.
Since the Application has failed at both the FSR and height of building development standards, the appeal must be dismissed before any further jurisdictional or merit considerations can be undertaken.
Accordingly, pursuant to s 39 of the LEC Act, I now move to dismiss the appeal.
The Court notes that:
1. Pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the Development Application with the consent of the Respondent.
2. The Respondent has uploaded the amended Development Application to the NSW Planning Portal on 7 September 2021.
3. The Applicant has tendered the amended Development Application as Exhibit A with the Court on 7 September 2021.
[2]
Orders
The Court orders that:
1. Pursuant to s 8.15(3) of the EPA Act, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Application, in the amount of $2,500 within 28 days of the date of these orders.
2. The appeal is dismissed.
3. The exhibits, other than 5, 8, A, and D, are returned.
[3]
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: 17 December 2021
Parties
Applicant/Plaintiff:
Kimberley Co Pty Ltd
Respondent/Defendant:
Waverley Council
Cases Cited (9)
Findings
I have determined that the final amended Application fails certain critical jurisdictional thresholds and for this reason may not be granted consent. My reasons are set out in the following paragraphs.
It is helpful to group the various live contentions in this case, and I now distill those remaining issues into a series of key planning and merit matters as follows:
1. If determined to be a relevant consideration, the adequacy or otherwise of the Applicant's cl 4.6 written request seeking to justify a proposed variation to the height of building development standard as set out at cl 4.3 of the WLEP.
2. If determined to be a relevant consideration, the adequacy or otherwise of the Applicant's cl 4.6 written request seeking to justify a proposed variation to the floor space ratio development standard as set out at cl 4.4 of the WLEP.
3. If determined to be a relevant consideration, the adequacy or otherwise of the Applicant's cl 4.6 written request seeking to justify a proposed variation to the minimum site size development standard as set out at cl 40(2) of the SEPP Seniors.
4. Whether the Application meets jurisdictional and merit considerations relating to the proposed extent of excavation when assessed against cl 6.2 of the WLEP and the relevant objectives and controls set out in Part B14 of the WDCP.
5. Whether the Application should be refused as it results in unacceptable view impacts to 25 Kimberley Street. In considering these view impacts, making an assessment against the relevant objectives and controls set out in the WDCP, which seek to achieve view sharing, and including applying the planning principle established by Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity).
6. Whether the Application satisfies merit considerations relating to the proposed side and rear setbacks, building separation, the achievement of adequate internal and external amenity, and the achievement of adequate visual and acoustic privacy when assessed against the relevant objectives and controls set out in the WDCP and against the relevant objectives and controls included within the ADG.
7. Whether the Application should be refused as it results in unacceptable impacts upon the visual and scenic values of the adjacent Conservation Area - Landscape.
8. Whether the Application should be refused as it fails to meet the requirements of the Draft SEPP Housing.
9. Whether the amended application is in the public interest having regard to the matters raised in residents' submissions.
The key to resolving the first three of these remaining contentions, lies in determining the appropriate relationship between the WLEP (particularly its development standards for height of buildings and FSR) and the SEPP Seniors (particularly the extent of its applicability and calculation of site size).
The Court was directed to a number of the critical provisions within SEPP Seniors. Of particular note are the following:
1. At cl 2(2)(a) the SEPP makes clear it sets aside local planning controls in order to achieve its aims. And at cl 3(1) the SEPP makes clear that the defined term "environmental planning instrument" includes the WLEP.
2. Also at cl 3(1) it is clear that the defined term "floor space ratio" refers to a calculation including the area of the "allotment" on which the proposal is to be erected.
3. The SEPP makes clear the defined term "heritage conservation area" refers to that portion of the site zoned RE1 Public Recreation.
4. At cl 4(1)(a)(ii) the SEPP makes clear that seniors housing is permissible on the portion of the site zoned R3 Medium Density Residential. And similarly, at cl 4(6)(a), it is clear the SEPP does not apply to that portion of the site zoned RE1 Public Recreation.
5. Reinforcing the previous point, at cl 4A(1), it is also clear the SEPP does not apply to that portion of the site identified as being within a Conservation Area - Landscape, which happens also to coincide with that portion of the site zoned RE1 Public Recreation.
6. At cl 5(3) it is clear that, to the extent of any inconsistency, the SEPP will prevail over the WLEP.
7. At cl 40(2) the SEPP makes clear that minimum site size is a development standard, and the size of the site must be at least 1,000sqm in area. The parties agree this development standard is amenable to variation by way of a written cl 4.6 request under the WLEP.
8. At cl 50 the SEPP sets out a number of further standards, which cannot be used to refuse a development application. At cl 50(a) the relevant development standard for building height is 8m, and at cl 50(b) the relevant development standard for FSR is 0.5:1. Since the subject Application exceeds both these development standards, they do provide the consent authority with a basis to potentially refuse the Application.
As another relevant environmental planning instrument, the WLEP sets out a planning framework relevant to the Application. Development for the purposes of seniors housing and residential apartment buildings are both permissible within the R3 Medium Density Residential zone. The Application may be characterised as both. Of particular note are the following:
1. At WLEP cl 4.3 - Height of buildings - the relevant development standard is 9.5m.
2. At WLEP cl 4.4 - Floor space ratio - the relevant development standard is 0.6:1.
3. At WLEP cl 4.5(4) - Calculation of floor space ratio and site area - specific exclusions are set out, making clear the area of that portion of the site zoned RE1 Public Recreation is to be discounted from the calculation of site area for the purposes of development.
4. At WLEP cl 5.1 - Relevant acquisition authority - it is made clear that the portion of the site zoned RE1 Public Recreation is intended to be acquired by the Respondent.
The Court was also directed to a series of authorities relevant to the question of the applicability of SEPP Seniors and its interaction with the WLEP.
The first is S J Connelly CPP Pty Ltd and Kate Singleton Pty Ltd t/as Planners North v Northern Regional Planning Panel (No 2) [2019] NSWLEC 199, where at [66] and [91], Pain J accepted, in the particular circumstance of that case, that SEPP Seniors should apply to a portion of the site identified as "proximity area for coastal wetlands".
The next authority is Mulpha Norwest Pty Ltd v The Hills Shire Council (No 2) [2020] NSWLEC 74, where at [39-46], Pain J resolved the various terms "lot", "site" and "land" in the calculation of site area and hence FSR.
The third authority is Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285 (Hastings Point), where the question of inconsistency between environmental planning instruments, similar to those of relevance to this matter, was determined.
The fourth authority is Eastern Suburbs Leagues Club Ltd v Waverley Council [2019] NSWLEC 130, where at [105], Moore J accepts that Hastings Point is an appropriate decision for his consideration in the matter before him.
The final authority the Court was referred to is Issa v Burwood Council [2005] NSWCA 38, where at [39], Pearlman AJA determines that the term "allotment" is to adopt its ordinary meaning.
"The precise identification of an "allotment" will depend on the facts and circumstances of each case. For example the identity of the area constituting an "allotment" might be derived from delineation of a lot or lots on a plan of subdivision (which may, but need not, be registered) or it might be derived from the physical boundaries of the area in question, or it might be derived from some agreement or other document specifying the limits of the area in question."
In determining the first three contentions in this matter, which relate to the interaction of the SEPP Seniors and the WLEP, and from there to the appropriate calculation of site size, and then to the applicability and calculation of FSR and height of building development standards, I set out my reasons below.