Kinala Pty Limited v Port Stephens Council

Land and Environment Court (NSW)|2023-04-14

JUDGMENT

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application 16-2021-781-1 for 'Residential flat building (9 storeys) comprising 24 apartments, commercial tenancy, strata subdivision, basement parking, landscaping, business identification sign and associated civil works' (the Proposed Development) at 17-19 Yacaaba Street, Nelson Bay legally described as Lots 34 and 35 Section 5 DP 17805 (the Site).
This matter is about the interface the Proposed Development will have with adjoining land subject to a different height of building (HOB) development standard and subject to a different land use zone. The proceedings commenced on-site and proceeded to be heard in Court sitting at Newcastle Local Court on the first day and in Sydney on the second day of the hearing. The matter was listed part heard at 4 pm on the third day for the tender of BASIX certificate (Ex K), SEPP 65 Design Verification Statement (Ex L) and agreed Proposed/Draft Conditions of Consent (Ex 5) at which time I reserved judgment.
The Statement of Facts and Contentions (SOFAC) filed by the Respondent on 19 August 2022 (Ex 1) sets out 8 contentions relating to town planning and urban design. This case is about HOB and character in the context of a town centre and the interface with adjoining different zones. The Applicant summarises that the "main issue and the main contention in this case is height of building. The Proposed Development exceeds the height limit of 28m by anything from about a third of a storey to one storey depending upon where and how you measure it." (Tcpt, 13 April 2023, p 69)

Notice of Motion to amend the Proposed Development

The Applicant moved on the Motion seeking to amend the Development Application and the Applicant provided short minutes of order updating or amending the orders sought in the Motion to the extent that the document listed at Order 1(d), namely the Written Request has been updated and was filed on the second day of the hearing. The Motion was dealt with over the first 2 days to allow the Respondent sufficient time to consider the Written Request.
Leave was granted to the Applicant and the Court notes that the Respondent, as consent authority agrees, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending its development application by relying on the following documents: 1. Amended Architectural plans by Mark Lawler Architects: 49 sheets (Drawings A-0-01 to A-9-01) dated 27 March 2023 (Ex C); 2. Two Surveyor certified Photomontage studies prepared by Dickson Rothchild with North Point Surveyors from Camera Location T03 at the southwest of the site and Camera location Y03 at the northwest of the site consisting of existing site photo from each location; the photomontage image with landscape as proposed in the amended landscape plan; photomontage without landscape; the silhouette of the amended application over the photograph; and the camera matching details of the view (Ex D); 3. Amended landscape plans by Terras Landscape Architects; 8 sheets revision E dated 23 March 2023 (Ex E); and 4. Variation to Development Standard (Clause 4.6) Report by Erin Daniel of Perception Planning dated 11 April 2023 and filed 13 April 2023 (Written Request) (Ex G)
The Court ordered on 12 April 2023 that the Applicant is to pay the Respondent the costs thrown away pursuant to s 8.15(3) of the EPA Act as agreed or as assessed.
The Applicant tendered a summary of the description of the Proposed Development in its amended form (Ex F). The key elements of the Proposed Development as amended by order made 12 April 2023 include: 1. Construction of a nine-storey building with basement and podium car parking; 2. 23 apartments incorporating 1 x 3 bedroom apartment on ground floor, 21 x 2 bedroom apartments on levels 2 to 8, a 3 bedroom penthouse on level 9 and a communal rooftop area on level 9; 3. Ground floor commercial unit comprising 79m2 internally and an associated 58m2 external terrace; 4. Basement and podium car parking comprising 36 car spaces (27 for residents and 9 for visitors) 5. Basement storage cages, garbage and recycling room; 6. Landscaping including street tree plantings, perimeter screen and amenity plantings; and 7. Stormwater management.
For the avoidance of doubt, the Applicant does not seek consent for subdivision.
On 22 September 2021, the DA was referred to Ausgrid in accordance with s 2.45 of State Environmental Planning Policy (Transport and lnfrastructure) 2021 - Ch 2 lnfrastructure. On 15 October 2021, Ausgrid provided a response that it made no objection to the application, subject to standard conditions relating to maintaining safe separation distances from Ausgrid assets during construction.
I will now deal with the remaining contentions as summarised above at [5] starting with the jurisdictional prerequisite of cl 4.6 of the PSLEP in contention 1. I will then consider the merit contentions to reach the conclusion that the Proposed Development warrants a grant of development consent.

Is the contravention of the maximum building height development standard justified? (Contention 1)

The PSLEP prescribes the maximum building height of 28m along the eastern side of Yacaaba Street in this part of the B.2 zone (cl 4.3). The HOB controls and the zone controls do not correlate in the relevant local area. I reproduce an extract of the Height Map below at Fig 1. Fig 1: Extract of PSLEP Height Map (Ex 2 - Respondent's Bundle of Documents)
Drawing 1708-A-7-07 Issue 2 dated 27 March 2023 Height Plane Diagram (Ex C) shows the proposed HOB to be 30.81m, being a contravention of the maximum building development standard by an exceedance of 2.81m or 10.04%. (see fourth paragraph in Executive Summary of Written Request) I reproduce the Height Plane Diagram at Fig 2. I will come back to measuring the HOB at [27]. Fig 2: Drawing 1708-A-7-07 Issue 2 dated 27 March 2023 Height Plane Diagram (Ex C)
The Applicant relies on a written request pursuant to cl 4.6 of the PSLEP (Written Request) prepared by Erin Daniel of Perception Planning dated 11 April 2023 and filed 13 April 2023, to justify the contravention of the HOB development standard of cl 4.3 of the PSLEP (Ex G). The Applicant's simple proposition is that "the additional height is capable of being consistent with the objectives of the control despite the breach". (Tcpt, 13 April 2023, p 69). Applicant written submissions, page 70.
Respondent contends that the Application has not provided satisfactory justification for the proposed non-compliance (Contention 1). The Respondent's Bundle of Documents (Ex 2) includes the Council Officer's Assessment Report at Tab 2 which recommended approval by the Council (folio 62) and includes an attached Clause 4.6 Assessment Report (starting at folio 63 of Ex 2) which responds to an earlier version of the Written Request. However, it illustrates a view taken on the proposed contravention of the HOB development standard. I will come back to this at [27].
Clause 4.6 of PSLEP provides, relevantly, as follows: … (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (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. (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 Planning Secretary has been obtained. …
His Honour Chief Justice Preston, in the decision Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action), sets out the relevant legal principles regarding the application of cl 4.6 of an LEP. 1. At [15], Preston CJ explains the first opinion of satisfaction in cl 4.6(4)(a)(i) as follows: "The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant's written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters." 1. At [25], Preston CJ further explains the requirement of a positive opinion required by cl 4.6(3)(a) and (b) as follows: "The consent authority, or the Court on appeal, must form the positive opinion of satisfaction that the applicant's written request has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b). As I observed in Randwick City Council v Micaul Holdings Pty Ltd at [39], the consent authority, or the Court on appeal, does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b). The applicant bears the onus to demonstrate that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the applicant's written request in order to enable the consent authority, or the Court on appeal, to form the requisite opinion of satisfaction: see Wehbe v Pittwater Council at [38]." 1. At [88], Preston CJ states: "…The requirement in cl 4.6(3)(b) is that there are sufficient environmental planning grounds to justify contravening the development standard, not that the development that contravenes the development standard have a better environmental planning outcome than a development that complies with the development standard."
The experts provide their agreements and disagreements regarding HOB in the JER at (10) as follows: "10 Height: a Agreed that height of the proposed building (as filed) exceeds the permissible maximum under the PSLEP, but definition of existing ground levels and dimensions of the height exceedance are not agreed. b Not agreed that height of the building as filed is acceptable in terms of LEP considerations or development controls in Part D5 of the PSDCP; c Agreed that height of the building as filed could be reduced, and that a marginal reduction of height is demonstrated by the amended concept (see Attachment Three to this report). d Not agreed that the revised variation request provides satisfactory responses to considerations in clause 4.6 of the PSLEP."
I now come to the issue of measuring the HOB mentioned at [11] and [21]. In the Executive Summary of the Written Request, Ms Daniel explains that there are two methods of measuring the HOB and for convenience I set out her explanation from page 3 of the Written Request as follows: "The first way is calculating the 'strict maximum heights' by the subtraction of existing ground levels (which relate to existing partial excavation of the Site) from proposed building levels which are located directly above. The maximum HOB using this method is 32.30m, or a 15.35% exceedance over the maximum of 28m. The second way is by utilising the extrapolation method, interpreting the ground level (existing) by reference to unexcavated levels along the head of the existing excavation, with the relevant ground levels measured in a perpendicular direction from site boundaries to relevant portions of the building. The method seeks to place the building in its context with the public interface which occurs at the street boundary. Using the extrapolation method, the maximum HOB above the assumed plane, achieved at the north-western point of the proposed roof is 30.81m or a 10.4% overrun relative to the maximum HOB of 28m."
Mr Newbold provides his own HOB calculations at Attachment 2 of the JER (Ex 4) and it is agreed that regardless of the method used to measure the HOB, the exceedance of the 28m HOB development standard is greater than 10%. Accordingly, the various calculations are noted. However, they do not on their own have any differentiating impact on my consideration of the terms of cl 4.6 of the PSLEP.

Is compliance with the HOB development standard unreasonable or unnecessary?

The Written Request addresses cl 4.6(3)(a) of the PSLEP and seeks to justify the contravention of the development standard demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The Written Request addresses 3 of the 5 ways which Preston CJ identified in the decision of Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), at [42] to [50], that a Written Request can establish that compliance with a development standard is unreasonable or unnecessary. These are set out in the Table 1 from pages 14 to 19 of the Written Request, namely: 1. The first way is to establish that the objectives of the development standard are achieved, notwithstanding non-compliance with the standard; 2. The third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; 3. A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council's own action in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable.
The Applicant does not rely on the fourth way and focuses on the first way during the proceedings.
Preston CJ explains in Initial Action at [16] and [17] as follows: "16 As to the first matter required by cl 4.6(3)(a), I summarised the common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe v Pittwater Council at [42]-[51]. Although that was said in the context of an objection under State Environmental Planning Policy No 1 - Development Standards to compliance with a development standard, the discussion is equally applicable to a written request under cl 4.6 demonstrating that compliance with a development standard is unreasonable or unnecessary. 17 The first and most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard: Wehbe v Pittwater Council at [42] and [43]."
The two objectives of the HOB development standard in cl 4.3 of the PSLEP are as follows: (a) to ensure the height of buildings is appropriate for the context and character of the area, (b) to ensure building heights reflect the hierarchy of centres and land use structure.
The Applicant submits that: "The context and character of the area in this case is the 28 m height area, adjacent as it is to a 17.5 m height area. How else is one to achieve and reflect the hierarchy of the centre anticipated with the amphitheatre design as described by Ms Daniel without the perimeter of taller buildings with a central smaller area of lower buildings and surrounded again by lower buildings?" (Tcpt, 13 April 2023, p 70)
The Respondent submits in closing submission (Tcpt, 13 April 2023, p 75) that: "To ensure that building heights reflect the hierarchy of centres and land use structure. As Mr Newbold says, it's difficult to divine from the Nelson Bay strategy what that hierarchy of centres is, because of the difficulty in comprehending the three layers. The zone layer which informs the land use structure, which is the last part of objective B. The height controls which give some information in relation to a hierarchy, but they don't give a hierarchy of centres, because we know that the centre, which is the Nelson Bay town centre, or even the precinct subset of that centre, or even the interior of the B2 zone are controlled by different height limits. So you don't in fact have a hierarchy of centres, you have a discombobulation of the B2 local centre because it has two different height standards. The closest you can come to some meaningful understanding of what was intended is to attempt to disaggregate what Ms Daniel is trying to tell you was meant by the Nelson Bay strategy, and that's partly a construct of an amphitheatre view of Nelson Bay, and partly a construct of a frame around the town centre. The first of those, the amphitheatre, is informed by natural elements. It's informed by the vegetated ridges and the creation of a bowl, and we know that the bowl is populated by four to seven storey buildings on the periphery of that naturally vegetated amphitheatre."
In order to understand the context and character of the area referred to in the first objective of the cl 4.3 HOB development standard, the Court has considered the following: 1. The area as described in the SOFAC and the Written Request extracted and reproduced below in this judgment at [42]. 2. Context and character as described in the Desired Character statement of the Port Stephens Development Control Plan 2014 (PSDCP) at Section D5.7 (Folio 166, Ex 2)
The Respondent urges the Court to consider that the planning principle in the decision of Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 (Seaside Property Developments) which is relied on by Mr Newbold, has some work to do when considering this first objective of the HOB development standard. Commissioner Bly at par [25] of Seaside Property Developments provides as follows: "25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like."
From the Land and Environment Court website in relation to Planning principles I note that: "A planning principle is a statement of a desirable outcome from a chain of reasoning aimed at reaching, or a list of appropriate matters to be considered in making, a planning decision. While planning principles are stated in general terms, they may be applied to particular cases to promote consistency. Planning principles are not legally binding and they do not prevail over councils' plans and policies. Planning principles assist when making a planning decision, including: • where there is a void in policy • where policies expressed in qualitative terms allow for more than one interpretation • where policies lack clarity."
The Respondent submits that the Planning principle enunciated by Commissioner Bly in 2004 has some work to do as it requires that any development proposal in one zone needs to recognise and take into account the form of the existing development in the adjoining zone, "It doesn't mean that you simply treat the abruptness of the difference in the height of building development standard as a given, and that no further adjustment is made. And it doesn't mean having regard only to the overshadowing privacy and view loss impacts. It means having regard to other amenity impacts that might be caused by the taking into account of the different forms of development. Importantly, the planning principle talks of the form of existing development as well as the form of development likely to occur. In this case the form of existing development is a critical and important feature which required more consideration than this proposal has provided, for the reasons that Mr Newbold gave in relation to the expectations for the short and medium term expectations for the continuity of the two storey form continuing on the southern side." (Tcpt, 13 April 2023, p 77(8))
The Applicant submits that the statement at par (25) of the planning principle is "of unsurprising import" (Tcpt, 13 April 2023, p 80) and: "That does not rise so far as to say that one is to have a lower building on a site that's at a zone interface, where there's a deliberate decision to identify different height limits on a fine-grained approach that the council has evidently taken to its height controls. The statement of principle in Seaside is not infringed in this case. It does not mean that because the development achieves or exceeds the height limit that it hasn't taken into account the form of development on the land to the south. That's not the conclusion that would be drawn from that." (Tcpt, 13 April 2023, p 80(24))
The decision of Commissioner O'Neill in Anglican Community Services v Blacktown City Council [2020] NSWLEC 1031 is relied on by the Applicant as the more appropriate decision for consideration by the Court because O'Neill C recognised the difference in the particular zones and the planning controls that were attendant with them in that case. O'Neill C dealt with an interface of an R2 Low Density Residential Zone against an R4 High Density Residential zone with comparable HOB of 9m and 26m. The Applicant compares that matter with the Proposed Development with a zone interface of B2 Town Centre against an R3 Medium Density Residential zone and comparable HOB being 17.5m and 28m. The Applicant also draws attention to the 42m maximum HOB development standard applicable to the south of the site.
I accept the Applicant's submission for the purpose of considering the Written Request and in particular in forming the first opinion of satisfaction, in cl 4.6(4)(a)(i), that the applicant's Written Request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a).
The Written Request, prepared by Ms Daniel addresses the two objectives of the cl 4.3 HOB development standard at pages 14 to 17. In relation to the first objective, the Written Request provides as follows: "(a) The proposal will be appropriate for the context and character of the are despite the breach in the height control. The Nelson Bay Town Centre and Foreshore Strategy (NB Strategy) was adopted by Council on the 24 April 2012. The site is located on the south-eastern edge of the Nelson Bay Town Centre, as identified within the NB Strategy. Nelson Bay and the greater Port Stephens region is characerised by several bushland peaks and ridgelines, with the town centre located within a natural amphitheatre sloping up from the marina and bay. The height limit applicable to the site indicates that Council's desire is to see a higher building than the adjoining R3 land to the south. Greater building heights are located around the edges of the town centre, and lower heights in the centre. The Urban Design Analysis which supported the NB Strategy and Delivery Program noted the following: "New development can frame the town centre and key view corridors, reinforcing the key characteristics of Nelson Bay. Increasing building heights around the town centre will enable new development that provides an increase resident population." It goes on to state the following: "The view looking south from the Western Groyne shows the amphitheatre created by the ridgelines that surround Nelson Bay Town Centre. This amphitheatre shape allows for views from the North of the town to maintain strong landscape character and setting. The topography of Nelson Bay along with vegetation, frames the core town centre. To maintain the natural setting, implementation of large bulky forms is discouraged. However, the impact of tall buildings would reinforce the amphitheatre and the town centre if placed towards the outside of the town centre. The view lines between Kurrara Hill and the marina form an axis for the main street of the town centre, which should be maintained." A building slightly taller than the controls, at the edge of the precinct is consistent with this strategy of placing the taller buildings at the edge of the amphitheatre. Most of the building is set below the 28m height of building requirement, with the exceedances limited to portions of the roof and Level 9 primarily within the north-western corner of the site where topography slopes. Level 9 incorporates the primary communal open space area (inclusive of the roof cover), and the remaining areas comprise the penthouse apartment, private open space for this apartment, and internal circulation and access areas including stairs and a lift. Substantial landscaping is also incorporated at this level. The development is of similar height to the recently approved developments to the north, on the conform of Donald and Yacaaba Street, and to the west, on Church Street and is thus appropriate when considered in the context of the neighbourhood and its character."
In relation to the second objective of the cl 4.3 HOB development standard, namely, to ensure building heights reflect the hierarchy of centres and land use structure, the Written Request, at pages 16 to 17 provides as follows: "It is also contended that the development reflects the hierarchy of the Nelson Bay Centre and associated land use structure. The site is located within the Town Living and Commercial Precinct of the Nelson Bay Town Centre, which has the following objectives (Section D5 of the PSDCP): • To provide character statements that were identified through the Nelson Bay Town Centre and Foreshore Strategy to guide development within the Town Living and Commercial Precinct as identified by Figure DJ. • To encourage a diversity of residential accommodation types to provide critical mass to support the role of the Village Precinct. … It is considered that the proposed development, inclusive of the height exceedance, is consistent with the PSDCP character statements [quoted] above [in this Written Request]. The desired large-scale development is achieved on-site, through the provision of a mixed-use residential and commercial building, that presents live-work opportunities. Compliance with the height standard of 28m is unreasonable in the circumstances of this case, as it would not enable the intentions of the NB Strategy, and in turn, objectives of the development standard to be realised. The exceeding portion of the building over 28m does not compromise the desired built form of the are, rather contributes to the framing of the Nelson Bay Town Centre. The development is complementary to the preferred context of the locality. It does not detract from or impact on the existing area nor the associated view corridors due to the topography of the land and its location on the outer periphery of the own centre. It is considered that the proposed development is appropriate for the existing and future character of the neighbourhood and will provide a development that is consistent with the objectives of the standard. … Thus, strict compliance with the standard would be unnecessary and unreasonable in the circumstances of this case."
I have considered and I find that the Written Request has adequately addressed the requirement to justify the contravention of the HOB development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. I adopt the reasons set out in the Written Request, in particular in relation to achieving the objectives of the development standard as set out in Table 1 of the Written Request, pages 14 to 17.

Has the Written Request demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard?

The Written Request explains in the Executive Summary at page 3, that: "…a taller building with the allowable floor space placed at the top of the building results in reduced shadow impacts, compared with one strictly compliant with the PSLEP height Apartment Design Guide (ADG) controls, which would produce a shorter, wider building, pushed to the Tomaree Street frontage. Although the proposed development exceeds the height limit, it results in a narrower built form than the PSLEP and ADG would contemplate on this site, to reduce the shadow impacts. The development results in a high-quality architectural outcome on-site which contributes to the transitioning nature of Nelson Bay and intended hierarchy of the centre. The proposed design results in a better planning outcome on-site despite the variation, with increased setbacks deriving improved amenity, shadowing and urban design impacts, thus the development is appropriate for the context and character of the area."
The above explanation is again repeated at page 10 of the Written Request.
As set out in Initial Action at [23] and [24]: "23 As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase "environmental planning" is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act. 24 The environmental planning grounds relied on in the written request under cl 4.6 must be "sufficient". There are two respects in which the written request needs to be "sufficient". First, the environmental planning grounds advanced in the written request must be sufficient "to justify contravening the development standard". The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]. Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]."
The Written Request at page 37, sets out four environmental planning grounds to justify contravening the development standard as follows: "The design has been centralised to the site as far as practicable to utilise existing excavated areas for the basement parking proposed. Centralising the development has ensured that the additional height will not result in any unacceptable privacy, overshadowing or view loss impacts. As detailed with the Visual Impact Assessment (VIA) prepared by Terras Landscape Architects (Rev A and dated 02.12.21) submitted with the DA, a compliant building height would result in a negligible change to view impacts, as the view loss is primarily caused by the lower levels of the building. The visual effect of the proposed development, even with the additional height above the height limit, is low, as the proposed design "blends with the existing built form and landscape beyond". A compliant height would not improve the transition between the site, and R3 sites to the south. By virtue of the PSLEP controls, a 28m height limit on the site, to a 17.5m height limit on the sites to the south, east and west is desired. This stark difference in scale is not materially altered by the additional height. Articulation, setbacks, and design controls to reduce privacy or amenity impacts have been incorporated into the proposal to ensure appropriate transition. The exceeding element does not contribute to any additional overshadowing impacts, as shown in the comparative set prepared by Mark Lawler Architects, provided at Appendix 1. Noting that lack of adverse impact is a recognised environmental planning ground: see Randwick City Council v Micaul Holdings Pty Ltimited (2016) 225 LGERA 94 at [34]. As shown in these images, the building could lawfully be pushed closer to Tomaree Street, utilising the ADG controls, which would cause greater shadows and associated impacts to the southern properties. Although the proposed development exceeds the height limit, it results in a narrower built form than ADG would contemplate on the site, to reduce the shadow impacts. Rather than designing a wide building placing the floor space at the lower portions of the building per the ADG, which would be less appropriate, the allowable floor space has been placed to the top of the building. A building that would be situated right to the boundaries, compliant with the PSLEP and ADG controls would have a greater impact on the intended context and character of the area. In contract, the proposed built form and associated articulation incorporated at Level 9 and the roof (the exceeding elements), have mitigated shadow impacts to the south, and has not exacerbated the impact. The development has also been identified to be consistent with the relevant objectives, which provides sufficient environmental planning grounds under the LEP (Clause 4.6) for a variation to the numerical development standard."
Mr Newbold in the JER at (18(a)(iv)) expresses his opinion regarding an earlier version of the Written Request which is not relied on by the Applicant. During the proceedings, Mr Newbold was able to give his opinion on the Written Request in evidence and his opinion is recorded on the Transcript of 13 April 2023 at pages 39 to 41. Mr Newbold's criticism seems to focus on whether the absence of privacy, overshadowing and other impacts have been adequately demonstrated. Mr Newbold's evidence is that: 1. he thinks that privacy would not be a problem in particular (Tcpt, 13 April 2023, p 41(4)) or more specifically, that the impacts in relation to privacy are non-existent, next to non-existent (Tcpt, 13 April 2023, p 54(1)). 2. view loss based on observations at ground level and from aerial photos, is unlikely to be significant (Tcpt, 13 April 2023, p 41(12)). 3. there may be no impact of shadows to the extent that shadow impact meets the ADG metrics (Tcpt, 13 April 2023, p 41(7) and p 47(41)).
In response to Mr Newbold's concern that the absence of impacts has not been demonstrated, the Applicant asked Mr Newbold and referred Mr Newbold to the decision of Initial Action where Preston CJ said at [90]: "…neither cl 4.6(3) nor (4) expressly or impliedly requires that development that contravenes a development standard "achieve better outcomes for and from development"…" and Mr Newbold conceded that to some extent he had been applying a neutral or beneficial frame of mind (Tcpt, 13 April 2023, p 48(22)).
I find that the Written Request has demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

Public interest

Finally, the second opinion of satisfaction required by cl 4.6(4)(a)(ii) of the PSLEP is that I am satisfied that the Proposed Development is 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.
The objectives of the HOB development standard in cl 4.3 have been considered above. The PSLEP sets out the B2 Local Centre zone objectives B2 zone for the PSLEP as at 1 December 2021 to 8 March 2022, as follows: Zone B2 Local Centre 1 Objectives of zone • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling.
The PSLEP zones were amended and is currently known as Zone E1 Local Centre with the following objectives: 1 Objectives of zone • To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area. • To encourage investment in local commercial development that generates employment opportunities and economic growth. • To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council's strategic planning for residential development in the area. • To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.
Preston CJ in Initial Action at [26] and [27]: "26 … The second opinion of satisfaction under cl 4.6(4)(a)(ii) differs from the first opinion of satisfaction under cl 4.6(4)(a)(i) in that the consent authority, or the Court on appeal, must be directly satisfied about the matter in cl 4.6(4)(a)(ii), not indirectly satisfied that the applicant's written request has adequately addressed the matter in cl 4.6(4)(a)(ii). 27 The matter in cl 4.6(4)(a)(ii), with which the consent authority or the Court on appeal must be satisfied, is not merely that the proposed development will be in the public interest but that it will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. It is the proposed development's consistency with the objectives of the development standard and the objectives of the zone that make the proposed development in the public interest. If the proposed development is inconsistent with either the objectives of the development standard or the objectives of the zone or both, the consent authority, or the Court on appeal, cannot be satisfied that the development will be in the public interest for the purposes of cl 4.6(4)(a)(ii)."
The Written Request having already addressed the objectives of the development standard in demonstrating that compliance with the development standard in unreasonable or unnecessary in the circumstances of the case, considers the objectives of the B2 Local Centre zone and observes that none of these objectives specifically relate to residential accommodation "even though many forms of residential accommodation are permissible in the zone." (Written Request, page 21). I accept that the Proposed Development is not antipathetic with the B2 Local Centre zone objectives and that the Proposed Development provides sufficient commercial area on the ground floor in an accessible location, providing future employment opportunities. Further, the: "Residential flat building component provides residential units, increasing the number of residents in the area. This encourages patronage of local retails, business and community uses which are accessible from this location through the existing public transport, walking and cycling opportunities established within the Nelson Bay Town Centre. … The approval of this variation will facilitate the proposed development which is in the interest of the local and greater community of Nelson Bay noting that the site has been vacant for over a decade. Development of the historically abandoned site within Nelson Bay will also increase the confidence in the local residential market, providing momentum for additional development." (Written Request, page 21)
Finally, in relation to the public interest, I have considered the Assessment report in the Respondent's Bundle of Documents (Ex 2) which at the outset it is relevant to note that notwithstanding that a different written request was being considered by the Assessment Officer, the Proposed Development the subject of the assessment proposed a HOB contravention of over 10%, thus I consider the opinions expressed by the Assessment Officer to remain relevant to the Proposed Development before the Court. At folio 65 to 67 of Ex 2, the Assessment Officer refers to the reliance by the Applicant on the first test in Wehbe and the Assessment Officer considers the context and character of the area noting that the Nelson Bay Town Centre is expected to undergo a period of revitalisation guided by the Council's "Nelson Bay Town Centre and Foreshore Strategy, 2012" and "Progressing the Nelson Bay Town Centre and Foreshore Strategy: A Revised Implementation and Delivery Program, 2018".
The Assessment Officer further notes that it is appropriate to consider the future desired character of the Nelson Bay Town Centre as well as the existing context and built character of the area. The character statement in the site-specific character for the Nelson Bay Town Living and Commercial Precinct under Section D5 of the PSDCP was considered and quoted by the Assessment Officer and concludes that: "the proposed development, inclusive of the height exceedance is consistent with the PSDCP 2014 character statements noting that it is for a larger scale mixed use building comprising a residential flat building land commercial tenancy that presents live-work opportunities and commercial office space. Moreover, the proposal is of a similar height to the approved 9 storey development to the other at the corner of Donald Street and Yacaaba Street." (Folio 66, Ex 2)
I note that the Assessment Officer has regard to adjacent precincts which have lesser height and density controls. This is also referred to by the Respondent and the experts as relationship with or zone interface.
Finally, in relation to the second objective of the HOB development standard in cl 4.3 of the PSLEP, the Assessment Officer opines that: "the proposal would be in keeping with the hierarchy of centres, established by the PSLEP and the DCP height and density controls for the site which are the equal highest in the Nelson Bay Town Centre. Given the height and density controls at this location are equal to the highest available in the town centre, the hierarchy and land-use structure of the locality would not be disrupted by the proposed height exceedance." (Folio 67, Ex 2)
Accordingly, the Court is satisfied that the Proposed Development would 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.
In relation to Concurrence of the Secretary, Preston CJ in Initial Action at [28] and [29]: "28 The second precondition in cl 4.6(4) that must be satisfied before the consent authority can exercise the power to grant development consent for development that contravenes the development standard is that the concurrence of the Secretary (of the Department of Planning and the Environment) has been obtained (cl 4.6(4)(b)). … 29 On appeal, the Court has the power under cl 4.6(2) to grant development consent for development that contravenes a development standard, if it is satisfied of the matters in cl 4.6(4)(a), without obtaining or assuming the concurrence of the Secretary under cl 4.6(4)(b), by reason of s 39(6) of the Court Act. Nevertheless, the Court should still consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100; Wehbe v Pittwater Council at [41]."
Clause 4.6(5) of the PSLEP provides that the Planning Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.
The Written Request addresses cl 4.6(5) at page 21 and I accept that "there appears to be little public benefit in maintaining the standard in circumstances where the modest breach of the standard does not cause any significant impacts on the surrounding area."
In conclusion, the Court is satisfied that the applicant's Written Request seeking to justify the contravention of the development standard in cl 4.3 of the PSLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the PSLEP and that the proposed development would 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.

Merit assessment of the remaining contentions

The Respondent submits that the Proposed Development is: "…a scarcely prepared development application in respect of which one floor should have been removed, and in respect of which there remain other design shortcomings that still haven't been properly addressed, and for all of those reasons you would either refuse the application for want of jurisdiction because you would refuse the cl 4.6 request as being well-founded, or you would refuse it for that reason in the company with the other reasons for refusal, or alternatively you would refuse it because the other merit issues, the failure to address the B2 and R3 zone interface and other outstanding issues would of themselves be sufficient reasons for refusal." (Tcpt, 13 April 2023, p 80)
I will now deal with the remaining merit contentions starting with character and zone interface (Contention 2), then design excellence, encompassing Contentions 3, 6 and 8.
In relation to character and to understand the contention regarding zone interface, I reproduce the image below at Fig 3 from JER (Ex 4) prepared by Mr Dickson with the following comment from page 9 of the JER (Ex 4): Fig 3: Image prepared by N Dickson, Page 9 JER, (Ex 4) "The image above shows the view from above looking south over the subject site in pink. The existing Mantra Nelson Bay is in yellow. The subject site lies at the south end of a band of 28m high control sites to the east side of Yacaaba Street. The R3 zone on the south side of Tomaree Street has a height limit of 17.5m. Further south are the 42 m sites which are proximate to the Existing Nelson Bay Bowling and Recreation Club. ND is of the opinion that the PLEP envisaged though the height control and accompanying FSR controls that area around the site is likely to be a transitional urban area."
Zone interface has already been considered to a considerable extent above in relation to the HOB objectives to ensure building heights reflect the hierarchy of centres and land use structure (cl 4.3(1) of the PSLEP). I adopt that same reasoning and find that the question of whether the visual impact in terms of height, scale and bulk is compatible with the existing and future characters of zone R3 which extends along the southern side of Tomaree Street (Contention 2) can be answered in the positive and any remaining residual concerns are minor or not sufficiently significant to warrant refusal of the Proposed Development.

ADG and unfair burden on future redevelopment of the adjoining site at 15 Yacaaba Street (Contention 3) Sustainability (Contention 6) and design excellence (Contention 8)

Regarding design excellence, the Applicant submits in closing submission that: "The remaining contention 8 in relation to design excellence largely falls from a decision that you will recall to make upon the form and design of the building of the height that is proposed, and indeed the additional upper storey on the southern side in particular, and the broad scale form of the southern elevation, having regard to what the controls anticipate. That is, there is absolute dearth of requirements for setbacks, streetside setbacks or any other controls which would mandate any other outcome, and there's no evidence to suggest that in other respects that the design of the southern facade isn't as well designed as it could be, that is that it has articulation, fenestration and an external appearance and materials which is acceptable from a design perspective. It seems to be that Mr Newbold's position is that he would have preferred to see a building not as high as eight storeys, not as high as a compliant building, on the southern side. But that would be a very difficult outcome to achieve obviously, given the need to achieve separation distances to the site to the north. The simple proposition is, absent an ADG control that would require a greater separation on the southern boundary, or a DCP control, to suggest that there should be a greater setback on the southern boundary you would find that there is no reason to conclude that the design is other than design excellence as required by the DCP provisions." (Tcpt, 13 April 2023, pp 73, 74)
The Respondent describes the Proposed Development as a "design still under the architect's hand".
The Applicant submits that the minor amendments that may need to be made to the conditions to achieve appropriate sustainability is not a reason for refusal. (Tcpt, 13 April 2023, p 82(15)). In relation to sustainability, the Proposed Development is supported by a BASIX Certificate filed on 14 April 2023 (Ex K). I do find that the issue of privacy screens and deep soil can be attended to by way of conditions.
Regarding deep soil, the Applicant amended its design to include an accessible ramp which resulted in reducing deep soil landscaping from 7% to 3% on the southern boundary, being at a zone and HOB interface. I find that this is an important interface and accept the Applicant's closing submission that 'the evidence you have before you is that it can be redesigned to set it back further, thereby reintroduce some soft landscaping." Accordingly, a condition of consent should be included to the effect that the accessible ramp be redesigned to set it back further, thereby reintroduce some soft landscaping at the southern boundary.
As to sliding privacy screens, the Applicant submits in closing submission that: "in terms of separation distances, that is adequately dealt with by sliding privacy screens. If there needs to be a condition that says that the additional screening is to be provided to the balconies of units 501 and 503, and indeed 601, 603, 701 and 703 and 801 and 803, up the building, that can be done by condition, and also a condition to require that the screening on both the west and the northern elevation of those apartments is to be movable and not fixed. That will address both the privacy concerns and indeed the sustainability concern in terms of additional shading to, providing additional shading to the west facing balconies." (Tcpt, 13 April 2023, p(30))
I find that a condition of consent should be included to the effect that additional screening is to be provided to the balconies of units 501 and 503, and indeed 601, 603, 701 and 703 and 801 and 803, up the building.
I conclude that on balance, and, following a careful merit assessment of the Proposed Development, the contentions pressed by the Respondent as articulated in this judgment are either wholly resolved by the amended plans or are of a sufficiently minor concern that they do not warrant a refusal to the Proposed Development. Accordingly, and for these reasons, development consent should be granted.
I will direct that the parties confer and, if possible, agree on and provide to the Court conditions of consent that reflect my findings at [73] and [75]. If agreement is not possible, the parties should provide to the Court their competing versions of the conditions and I will decide on the conditions of consent that should be imposed. If there is a necessity for an appearance, the parties could make submissions in that regard. Upon receiving and considering conditions of consent, I will then uphold the appeal and grant development consent subject to conditions.

Directions:

Accordingly, the Court directs that; 1. By 21 September 2023, the parties are to confer, and if possible agree on the terms of conditions of consent, and amendments to other documents as may be necessary, relating to the redesign of the accessible ramp and inclusion of privacy screens to reflect the findings of this judgment at [73] and [75], and file the agreed conditions and any other appropriate amended documents as necessary. 2. If the parties are not able to agree on the particulars of conditions of consent and other documentary amendments, as necessary, by 21 September 2023, each party is to file in Court and serve the party's version of the proposed conditions to reflect the findings at [73] and [75]. 3. Liberty to restore is available in the normal manner, and online Court submissions can be made should there be agreed modifications to the timetable above.

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: 06 September 2023

(2018) 236 LGERA 256

(2007) 156 LGERA 446

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