Kingsford-Smith v The Council of the City of Sydney [2020] NSWLEC 1576 | Case summary

Land and Environment Court (NSW)|2020-08-17

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 Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 ("Wehbe") at [42]-[51] and repeated in Initial Action at [17]-[21]: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the Council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

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's expert in the written request.

Impact on the heritage significance of the Ultimo Heritage Conservation Area

I am satisfied that the proposal will not detract from the contribution made by the existing terrace house to the collective heritage significance of the Ultimo Heritage Conservation Area, because the proposal retains the original fabric of the principal form of the terrace house, including the proportions and layout of the principal form, and the additions are confined to the rear of the first floor of the terrace house and within the existing form of the roof when viewed from Ada Place.

Orders

The orders of the Court are: 1. The applicant is granted leave to amend the application to rely on the following architectural plans prepared by Canary Constructions & Management Pty Ltd: 1. Drawing No. A000, over Page, Revision H, dated 10/20; 2. Drawing No. A100, Site Analysis, Revision H, dated 10/20; 3. Drawing No. A110, Roof Plan, Revision H, dated 10/20; 4. Drawing No. A120, Floor Plans, Revision H, dated 10/20; 5. Drawing No. A200, Elevations, Revision H, dated 10/20; 6. Drawing No. A210, Sections, Revision H, dated 10/20; 7. Drawing No. A310, Chimney and Studio Support Proposal, Revision H, dated 10/20; 8. Drawing No. A320, Wall Details, Revision H, dated 10/20; 9. Drawing No. A600, Concept Drainage Plan, Revision H, dated 10/20; 10. Drawing No. A700, Area Schedule, Revision H, dated 10/20; 11. Drawing No. A800, Materials Board, Revision H, dated 10/20; 12. Drawing No. A900, Notification Plan, Revision H, dated 10/20. 1. Leave is granted to the applicant to amend the application to rely on the following revised documents: 1. aSquare Planning Pty Ltd, Request for variation to development standard under cl 4.6 of the Sydney Local Environmental Plan 2012 dated 8 September 2020. 1. The applicant is to pay those costs of the respondent thrown away as a result of the amendment of the application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $3,500 within 28 days of these orders. 2. The applicant's written request pursuant to cl 4.6 of Sydney Local Environmental Plan 2012, prepared by aSquare Planning Pty Ltd dated 8 September 2020 seeking a variation of the development standard for floor space ratio under cl 4.4 of the Sydney Local Environmental Plan 2012 is well founded and upheld. 3. The appeal is upheld. 4. Development Application No. D/2019/616 for alterations and additions to the existing dwelling including a second storey rear extension and alterations to the existing attic space is approved, subject to the conditions of consent at Annexure A.

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: 23 November 2020

Contravention of the FSR development standard

The site area is 68.5sqm. The proposal has a FSR of 1.42:1 representing a gross floor area (GFA) of 97.35sqm.
The applicant provided a written request seeking to justify the contravention of the FSR development standard, prepared by Jennie Askin of aSquare Planning and dated 8 September 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 ("Initial Action") at [13]). 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 proposed 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(6) of the LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action at [29]).

(2018) 236 LGERA 256

(2007) 156 LGERA 446

Kingsford-Smith v The Council of the City of Sydney

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