Lane Cove Council v Orca Partners Management Pty Ltd

ent Ltd v Shoalhaven City Council [2001] NSWCA 74 Selby v Pennings (1998) 19 WAR 520; 102 LGERA 253 Somerville v Dalby (1990) 69 LGRA 422 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 Wehbe v Pittwater Council [2007] NSWLEC 827; 156 LGERA 446 Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; 130 LGERA 79 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589 Texts Cited: M Aronson, The Resurgence of Jurisdictional Facts (2001) 12 Public Law Rev 17 Category: Principal judgment Parties: Lane Cove Council (Applicant) Orca Partners Management Pty Ltd ACN 096 175 567 (First Respondent) Sydney East Region Joint Planning Panel (Second Respondent) Michael Keith Van Twest (Third Respondent) Peter John Baum (Fourth Respondent) Xiao Man Wang (Fifth Respondent) Ngai Wong (Sixth Respondent) Quingsheng Zhou (Seventh Respondent) Yueming Li (Eighth Respondent) Joseph Stanley (Ninth Respondent) Pamela Joan Stanley (Tenth Respondent) Michael Peter Hone (Eleventh Respondent) Una Isabel McCathie (Twelfth Respondent) John De Vere Tyrrell (Thirteenth Respondent) Ursula Regina Lydia Mooser (Fourteenth Respondent) Heinrich Walter Mooser (Fifteenth Respondent) Alice Lai Ping So (Sixteenth Respondent) Jim Spanos (Seventeenth Respondent) Toula Spanos (Eighteenth Respondent) Christine Carberry (Nineteenth Respondent) Heidi Sung Man Wong (Twentieth Respondent) John Martin McNamara (Twenty First Respondent) Judith Anne McNamara (Twenty Second Respondent) Rosena May Sampson (Twenty Third Respondent) Andrew De Vere Tyrell (Twenty Fourth Respondent) David John Haugh (Twenty Fifth Respondent) Rosanne Haugh (Twenty Sixth Respondent) John William Davis (Twenty Seventh Respondent) Janice Mary Davis (Twenty Eighth Respondent) Yifang Australia Pty Ltd ACN 164 674 828 (Twenty Ninth Respondent) Orca Partners Pty Ltd ACN 118 154 751 (Thirtieth Respondent) Representation: Counsel:

Mr A Galasso, SC and Mr M Astill, barrister (Applicant) Mr D Miller, SC (First Respondent) Mr P Tomasetti, SC and Mr J Johnson, barrister (Twenty Ninth Respondent) (Respondents Two to Twenty Eight and Thirty submitting)

Marsdens Law Group (Applicant) Gadens (First Respondent) Department of Planning & Environment (Second Respondent) CKSD Lawyers (Twenty Ninth Respondent) Various (Submitting Respondents) File Number(s): 40694 of 2014

A: Introduction

1. These are expedited judicial review proceedings.
2. They have been brought by the applicant Council to have the Court declare invalid, a development consent ("DC" - No 13/194), which applies to a site which is to be consolidated within the Council's local government area.
3. Council seeks a declaration of such invalidity, consequential restraining orders against most respondents (the first, and the third to the thirtieth), and an order for its costs.
4. The Council's case, argued on its behalf by Mr A Galasso SC (and with him Mr M Astill of counsel) is that the subject consent, granted by the second respondent, Sydney East Joint Regional Planning Panel ("the JRPP") breaches the requirements of the Lane Cove Local Environmental Plan 2009 ("LEP").
5. The project at the centre of the matter is Stage 1 of a "staged development". It has an estimated value of approximately $65 million, will contain 245 apartments in 4 buildings, and is expected to be completed in April 2017.

The 30 Respondents

1. There are 30 respondents now named in the Council's amended summons.
2. Only two respondents (the 1st and 29th) have appeared as active contradictors.
3. The first respondent, Orca Partners Management Pty Ltd ("Orca"), is the proponent of the development application ("DA"), and is represented by Mr D Miller SC.
4. The 29th respondent, Yifang Australia Pty Ltd ("Yifang"), is represented by Mr P Tomasetti SC (and with him Mr J Johnson of counsel).
5. As Biscoe J noted in Lane Cove Council v Orca Partners Management Pty Ltd [2014] NSWLEC 162, on 30 October 2014, Yifang, and the 30th respondent, Orca Partners Pty Ltd ("Partners"), are parties to an agreement, under which Partners will assign to Yifang the rights it has acquired to purchase the properties that are embraced in the DC.
6. His Honour added both Yifang and Partners as respondents to the Council's proceedings, but Partners have filed a submitting appearance, save as to costs.
7. The second respondent, the JRPP, considered recommendations made to it by the Council, and determined the application contrary to them. It has filed a submitting appearance, save as to costs, but its solicitor, Ms L Sims: 1. expressed relevant views in a letter to Council's solicitor, prior to the hearing, upon which booth Mr Miller and Mr Tomasetti relied in their submissions (at pars 52 and 41 respectively); and 2. appeared before me briefly (Tp30) to advise, in response to a Notice to Produce issued by the Council (Exhibit A3), that it had no documents to produce.
8. All other named respondents, namely the third to 28th, are owners of the affected properties, and all of them have also filed submitting appearances, save as to costs.

The Agreed Facts

1. For completeness, I include, in full, at this point, a Statement of Agreed Facts ("ASOF"): 1. The subject land is known as 2-22 Birdwood Avenue and 11-15 Finlayson Street, Lane Cove and comprises 17 individual allotments with each of the individual allotments in separate ownership ("the land"). 2. The land is zoned R4 High Density Residential under the Lane Cove Local Environmental Plan 2009 ("the LEP"). The land has an area of 10479.3m2. 3. [Partners] has entered into an Option Deed with each of the owners of the individual allotments comprising the land wherein it is entitled to purchase each of the individual allotments. 4. On 17 July 2014 [Partners] entered into a document titled "Agreement to Assign Option Deed" with [Yifang] wherein [Partners] agrees to assign its rights to purchase the individual allotments to [Yifang]. 5. [Orca], by its agent, has lodged with ... Council on or around 25 November 2013 a development application seeking development consent for "Stage 1 Concept Plan application for the redevelopment of the site for the purpose of four (4) residential flat buildings, basement, car parking and on-site landscaping. Approval is sought for the concept plan only and no physical works at this stage" for the land. ("DA194/13") 6. DA194/13 confirmed that the cost of the proposal was Sixty four million six hundred and eighty five thousand four hundred and five dollars ($64,685,405.00). 7. Having regard to the fact that the capital investment value of the proposal exceeds Twenty million dollars ($20,000,000.00) DA194/13 was referred to the [JRPP] to exercise the function of determining DA194/13. 8. The gross floor area as detailed in DA194/13 was consistent with a floor space ratio of 1.95:1. 9. DA194/13 was accompanied by a building envelope plan that depicted buildings whose height was in excess of 18 metres when measured in accordance with the definition of 'building height' under [the LEP]. 10. Two written requests pursuant to clause 4.6 of the LEP were contained in the Statement of Environmental Effects [("SEE")] dated November 2013 accompanying DA194/13. 11. The chronology of events was as per the agreed chronology.

The Evidence

1. The three active parties prepared a court book, which included the ASOF, and a chronology, and they largely agreed on what other documentary evidence would be tendered to the court.
2. Each tendered two large folders of documents, among which there is some repetition of material, and I allowed Yifang to read three affidavits, one each by: 1. Lixiang ("Stone") Bai, a 50% shareholder of Yifang and in charge of the project on its behalf; 2. Carl Ku, Yifang's solicitor; and 3. Stephen Sanlorenzo, of APP Corporation, Yifang's project manager for the subject development.
3. None of the deponents was required for cross-examination.
4. Specifically put before the Court, apart from the six tendered bundles, and the Court Book, were a Council Notice to Produce (Exhibit A3), and the Statements of Reasons ("SOR") provided by the participating members of the JRPP (Exhibit A4 - tabs 9 to 13 of the Court Book).

B: The Lane Cove LEP

1. The LEP (Exhibit O2, Tab 12 - [4] above), is modelled upon the "Standard Instrument".
2. The Land Use Table for its "R4 High Density Residential" zone (see also cl 2.3) provides as follows: 1 Objectives of zone • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a high concentration of housing with good access to transport, services and facilities. • To ensure that the existing amenity of residences in the neighbourhood is respected. • To avoid the isolation of sites resulting from site amalgamation. • To ensure that landscaping is maintained and enhanced as a major element in the residential environment. 2 Permitted without consent Nil 3 Permitted with consent Bed and breakfast accommodation; Boarding houses; Child care centres; Community facilities; Exhibition homes; Group homes; Home businesses; Home industries; Hotel or motel accommodation; Multi dwelling housing; Neighbourhood shops; Places of public worship; Residential flat buildings; Respite day care centres; Roads; Shop top housing; Signage 4 Prohibited Any development not specified in item 2 or 3
3. Clause 1.4 incorporates a "dictionary", which includes the following definition: building height (or height of building) means the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.
4. It also includes a fairly self-explanatory definition of "gross floor area", but for a definition of "floor space ratio" it refers the reader to cl 4.5, which is in Part 4 of the LEP.
5. Other relevant clauses of the LEP are: 1.6 Consent authority The consent authority for the purposes of this Plan is (subject to the Act) the Council. ... 1.9 Application of SEPPs (1) This Plan is subject to the provisions of any State environmental planning policy that prevails over this Plan as provided by section 36 of the Act. (2) The following State environmental planning policies (or provisions) do not apply to the land to which this Plan applies: State Environmental Planning Policy No 1 - Development Standards ... ...

The EPA Act

1. The subject DA being for a "staged development", it attracted the provisions of Div 2A of Part 4 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). The relevant provisions of that division are as follows: Division 2A Special procedures concerning staged development applications 83A Application of this Division This Division applies to staged development applications and to consents granted on the determination of those applications. 83B Staged development applications 1. For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development. 2. A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application. 3. If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. 4. The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3). ... 83D Status of staged development applications and consents (1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application. ... (2) While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent. (3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application.

The EPA Regulation

1. Several provisions in the EPA Reg are also of major relevance.
2. Clause 3 defines "capital investment value", "concurrence authority", and other terms, and Part 6 Div 1, especially cl 50, deals with the making of DAs. Division 2 of that Part deals with DAs which require "concurrence". That Division comprises clauses 58 to 64, of which the following are particularly involved in the present matter: 58 Application of Division (1) This Division applies to all development applications that relate to development for which the concurrence of a concurrence authority is required. (2) This Division does not apply in circumstances in which a concurrence authority's concurrence may be assumed in accordance with clause 64. (3) This Division ceases to apply to a development application if the development application is rejected or withdrawn under clause 51 or 52. 59 Seeking concurrence (1) After it receives a development application for development requiring concurrence, the consent authority: (a) must forward a copy of the application (together with all accompanying documentation) to the concurrence authority whose concurrence is required, and (b) must notify the concurrence authority in writing of the basis on which its concurrence is required and of the date of receipt of the development application, and (c) if known at that time, must notify the concurrence authority in writing of the dates of the relevant submission period or periods if the application is to be publicly notified under section 79 or 79A of the Act. (2) In the case of a development application that indicates on its face that such concurrence is required, the application must be forwarded to the relevant concurrence authority within 14 days after the application is lodged. ... 63 Reasons for granting or refusal of concurrence (1) If the concurrence authority: (a) grants concurrence subject to conditions, or (b) refuses concurrence, the concurrence authority must give written notice to the consent authority of the reasons for the imposition of the conditions or the refusal. (2) If the concurrence is one that is required under section 79B (3) of the Act, a copy of the reasons must be available for public inspection, during ordinary office hours: (a) at the head office of the National Parks and Wildlife Service, or (b) if the matter concerns critical habitat of fish or marine vegetation, or threatened species, populations or ecological communities of fish or marine vegetation or their habitats, at the head office of NSW Fisheries. 64 Circumstances in which concurrence may be assumed (1) A concurrence authority may, by written notice given to the consent authority: (a) inform the consent authority that concurrence may be assumed, subject to such qualifications or conditions as are specified in the notice, and (b) amend or revoke an earlier notice under this clause. (2) A consent granted by a consent authority that has assumed concurrence in accordance with a notice under this clause is as valid and effective as if concurrence had been given.

State Environmental Planning Policies

1. Two SEPPs (apart from No 1, to which I will return) are of some relevance to the project, namely State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development ("SEPP 65" - Exhibit O2, tab 10), and State Environmental Planning Policy (State and Regional Development) 2011 ("SEPP-SRD").
2. Part 4 of SEPP-SRD deals with Regional Development, and provides as follows: 20 Development to which Part applies This Part applies to development of a class or description included in Schedule 4A to the Act. 21 Council consent functions to be exercised by regional panels (1) A regional panel for a part of the State may exercise the following consent authority functions of the council or councils for that part of the State for development to which this Part applies: (a) the determination of development applications, and applications for the modification of development consents previously granted by the panel, in accordance with Part 4 of the Act, (b) without limiting paragraph (a), the functions of a consent authority under Divisions 2 and 2A of Part 4 of the Act and sections 89A, 93I, 94, 94A, 94B, 94C, 94CA, 94EF, 94F, 95 (2), 96 (2) and 96AA of the Act. (2) However, the following functions of a council as a consent authority are not conferred by this clause on a regional panel: (a) the functions conferred by section 79B of the Act (other than section 79B (9)), (b) the functions conferred by section 80A (7)-(10) of the Act, (c) the functions conferred by section 82B of the Act, (d) the functions conferred by sections 94 (5) and 94EF (5) of the Act, (e) the receipt and assessment of development applications, (f) the determination and receipt of fees for development applications, (g) notification of determination of development applications, (h) the functions conferred by section 95A of the Act, (i) the determination of applications for modification of consents on the ground of a minor error, misdescription or miscalculation under section 96 (1) of the Act, (j) the functions conferred by section 96 (1A) of the Act, (k) the functions conferred by section 96AA of the Act, if the original development application was not determined by a regional panel. (3) The council remains the consent authority for development to which this Part applies, subject to the exercise by regional panels of functions conferred on them by this clause. ... 22 Staged development functions for development exceeding minimum capital investment values If: (a) development of a class or description included in Schedule 4A to the Act is described in that Schedule by reference to a minimum capital investment value, other minimum size or other aspect, and (b) development the subject of a staged development application under Part 4 of the Act is development so specified, and (c) the relevant regional panel is satisfied that development the subject of a separate development application forming part of the staged development application is part of a single proposed development so specified, the functions of a council conferred on the regional panel under this Part extend to the determination of the separate development application.

The Design Code

1. The Court was also referred to the Residential Flat Design Code ("RFD Code"), published by the NSW Department of Planning in 2002 (Exhibit O2, tab 11).
2. Its commentary (at p22/fol 643) on "Building Envelopes" is of relevance to the content of the subject proposal, as considered and determined: A building envelope is not a building, but a three dimensional zone that limits the extent of a building in any direction. It defines the extent of the overall building zone in plan and section within which a future building can be located. (see image 014.49) The length, depth and height of building envelopes are defined in metres. Building envelopes should be at least 20-25 percent greater than their achievable floor area to allow for building articulation (see Floor Space Ratio). Building envelopes set the appropriate scale of future development in terms of bulk and height in relation to the street layout and block and lot sizes in a particular location. They are appropriate for determining and controlling the desired urban form in town centres, brownfield sites, master plan sites and special sites - such as areas with extreme topography. Building envelopes can help: design the three dimensional form of an area inform decisions about appropriate density for a site and its context test that the primary controls are coordinated and produce the desired outcome communicate and illustrate the future bulk and distribution of new development to planners, councillors and development applicants.

The Development Control Plan

1. The Lane Cove Development Control Plan ("DCP" - Exhibit Y1, tabs 4a - 4j) took effect on 22 February 2010.
2. The Court was referred to its "objectives for site amalgamation and development on isolated sites" (tab 4c, Section B.3, par 3.1, at p7/fol 37) in the part of the DCP concerning General Controls. Those objectives are: a) To provide for a development that achieves the required employment and dwelling yields. b) To encourage the promotion and co-ordination of the orderly and economic use and development of land. c) To encourage site consolidation of allotments for development in order to promote the desired urban design outcomes and the efficient use of land and to avoid the creation of isolated sites. d) To encourage the development of existing isolated sites in a manner that responds to the desired built form pattern, site context and maintains a satisfactory level of amenity.

The DA documents

1. The DA (Exhibit A1, tab 1) was lodged on 25 or 26 November 2013, in the name "Turner (contact Kevin Driver)", for a project described (ASOF 5) as: Stage 1 Concept Plan application for the redevelopment of the site for the purpose of four (4) residential flat buildings, basement, car parking and on-site landscaping. Approval is sought for the concept plan only and no physical works for this stage.
2. The site area was stated to be 10,479.3 m² (ASOF 2), and the gross floor area of the proposed building 20,435 m², which translates to a FSR of 1.95:1 (fol 27 - ASOF 8).
3. An extensive SEE (Exhibit A1, tab 2 - ASOF 10, [14] above), prepared by "City Plan Services" (City Plan Strategy and Development Pty Ltd - "CPS"), stated (at fols 7 - 10): This DA seeks approval for a staged development under Section 83B of the [EPA Act]. The first stage of the proposal seeks approval for a concept plan to redevelop the site for the purpose of a residential development complex with four (4) residential flat buildings, basement car parking, on-site landscaping, and a publicly accessible through-site link. The subject application seeks approval for this Stage 1 concept plan, with future detailed DA's to be submitted for demolition, the detailed design and stage construction of the concept plan. By way of background, in early 2013, Orca Partners sought to amalgamate the 17 remaining lots in the street block between Birdwood and Finlayson Streets, Lane Cove. Currently, these 17 residential lots comprise single residential dwellings, with the zoning of the land and desired future character of these lots is for high density residential development. The remaining development sites in the street block currently benefit from existing development consents for residential flat buildings and a dental surgery (1 Finlayson Street). ... In drafting its current controls, Council would have anticipated redevelopment of smaller development sites within the street block, such as continuing the pattern of the approved adjacent RFB's on Finlayson Street. These controls would not have anticipated amalgamation of 17 of these lots into a development site of over 10,000m². In this context, it is important to consider that whilst an increase in dwellings of approximately 14% greater than anticipated under Council's controls is sought (245 "indicative" dwellings proposed as opposed to approximately 215 as anticipated by the zone for the subject site), the subject site is capable of absorbing this additional density and has the capability of delivering the aforementioned public benefits. The current site amalgamation is achievable only by Orca Partners. Should this amalgamation not be maintained, there would be the loss of a significant opportunity to create a better planning outcome for the site. The resultant outcome would likely consist of a piecemeal and inconsistent redevelopment of the land, that would not be able to deliver the east-west through-site link; would unlikely be able to retain significant trees on the site or street though multiple site access points rather than one; would not be able to deliver a consistent building presentation and activation to street frontages; and would unlikely achieve the development yield anticipated by the relevant planning controls. The benefits of this outcome in strategic planning terms are clear in this regard. The request to vary Council's maximum height and floor space ratio controls in the [LEP] will have no substantial or detrimental impact on the zone, the surrounding area or Council's objectives. More specifically, they would enhance the activation of the Lane Cove Town Centre, provide a more sustainable development and broader benefit to the public. We therefore submit this application to Lane Cove Council on behalf of our Client, and following a detailed planning assessment of the concept plan, we recommend approval of the application. Approval is recommended subject to the mitigation measures outlined in the specialist consultant's reports accompanying this application and future stage applications for demolition, detailed design and stage construction of the concept plan.

The Assessment Process

1. The assessment process - and dialogue among proponent, objectors, consultants, and Council - proceeded during December 2013 and into 2014 (Exhibit A1, tabs 3 - 13, and Exhibit A2, tabs 14 - 50), and a link to the DA documents was provided to JRPP members.
2. For SEPP 65 purposes, Council engaged Tim Williams Architects (Exhibit A1, fol 572, and Exhibit A2, tabs 38 and 46), and the developer of the site at 17-19 Finlayson Street engaged Dan Brindle, of BBC Planners, to object on its behalf (Exhibit A2, tabs 17 and 48).
3. Council also received many other comprehensive submissions, and prepared a summary analysis of the concerns expressed (Exhibit A2, tab 52, and fol 853). CPS responded several times to Council regarding the various issues raised.
4. Council then prepared its Assessment Report for the JRPP meeting to be held on 26 March 2014 (Exhibit A2, tab 53), and followed up with a Supplementary Report (tab 54). CPS was given the opportunity to comment on a draft of the Council report, and did so on 21 March 2014 (tab 51).
5. In response to a detailed letter from Council to Turner, dated 17 January 2014 (Exhibit A2, tab 37), following Council's "preliminary review" of the DA, CPS made a detailed submission (tab 39) on 3 February, which included some expert reports and amended plans, and undertook to provide some shadow diagrams.
6. In response to a submission which suggested a Planning Proposal as "a better alternative to the subject concept DA and submitted cl 4.6 variation requests", CPS said (fol 685), inter alia:

• The proposed variation to the height and FSR standards is not any attempt to effect a general planning change to the standards in the wider R4 zone. The variation to the standards for this specific site do not warrant a review of the standards in the wider R4 zone, particularly given the subject concept application clearly demonstrates that it is capable of being designed in future stages to mitigate any adverse environmental impact and given this site represents a unique situation of substantial site amalgamation which is very unlikely to occur "to many sites in the locality" (Wehbe). Given these circumstances, approval of a variation to this standard will therefore not set a adverse planning precedent.
• There are no specific numerical limits to the application of Clause 4.6 of the LCLEP and approval of the proposed variations is within Council's discretion. The variations are within the realms of what can be reasonably considered under Clause 4.6 and that our written requests for variations to the height and FSR standards adequately address the requirements of Clause 4.6

The JRPP Process

1. On 21 March 2014, CPS wrote to the JRPP, copy to Council, in response to the draft of Council's Assessment Report, which recommended refusal of consent (tab 51). CPS complained (fol 770) that it had received no feedback from Council following the 24 February meeting, and (fol 769) that the draft report raised "so many issues that have either not been raised with us, are not fully addressed or justified, or where we simply have a difference in opinion".
2. The proponent's submission to the JRPP included the following passage (fol 769 - 771): In the first instance, we wish to emphasise that approval is sought for a concept plan only. Approval is sought for building envelopes, a total floor space ration (FSR), building footprints, access points etc. All other matters will be addressed in future detailed DA(s). Whilst approval of such an application will set the parameters for future development applications to be considered, it will be on the onus of the Applicant to demonstrate to the Council and potentially the JRPP, in future applications, that the detailed design of the buildings deliver the "capability" outcomes or "commitments" demonstrated in this application. Such commitments or future requirements may be reinforced through the imposition of appropriate conditions to consent. It is unfortunate that Council has recommended refusal largely on the basis of the proposed variations to the height and FSR standards. Whilst there are a range of reasons for refusal, as stated in the report, "Council's principal concern with the proposed concept plan is the variation sought to the LEP with regards to FSR and building height". Even though height is mentioned as an issue, it is clearly the additional gross floor area of the development that is of greatest concern. Council incorrectly states that the rationale for the variation to the additional gross floor area relies on "several perceived public benefits...namely the proposed publicly accessible pedestrian through site link". This is simply not the case and we have made this point on numerous occasions to the Council. Our submissions to-date clearly demonstrate that the Clause 4.6 variation requests stand up to scrutiny in their own right, regardless of the evident benefits of the proposal. These are simply "flow-on" benefits of being able to consolidate and redevelop a site of this size that would otherwise not be feasible on a individual site-by-site basis. Council also states that "the application fails to quantify the public good offered for the variation to Council's controls". This is not a simple case of land dedication in lieu of additional floor space. That is not what the application proposes and one cannot "quantify" the public good in dollar terms offered through the proposed through-site link and "pocket-parks" as a comparison or justification to the proposed variation to Council's controls. In the circumstances of this case, this is not an appropriate way to determine whether the variations to the controls are supported. ... The impacts of the development and the height and FSR standard variations have been well considered in the application. We have also considered the relevant provisions of Clause 4.6 of the LCLEP and determine that the variations are warranted. We have also clearly demonstrated that despite Council remaining "unconvinced" as to the value of the development and the link specifically, this should not be a reason to refuse this development which presents a number of key opportunities to be harnessed. Council's contentions that there will be unreasonable overshadowing is confusing. It acknowledges that "given the site is immediately north of two properties....it is anticipated that some additional overshadowing would be experienced". Yet, Council clearly raises concerns regarding the shadows cast. ...

The JRPP Decides

1. The minutes of the JRPP meeting on 26 March 2014 are before the Court (Exhibit A2, tab 56). The relevant part of the minutes of the meeting that dealt with this DA is reproduced below: MINUTES OF THE SYDNEY EAST JOINT REGIONAL PLANNING PANEL MEETING HELD AT LANE COVE COUNCIL ON WEDNESDAY 26 MARCH 2014 AT 4.00PM PRESENT: John Roseth Chair David Furlong Panel Member Julie Savet Ward Panel Member Trevor Bly Panel Member Soo-Tee Cheong Panel Member IN ATTENDANCE Rebecka Groth Lane Cove Council Rajiv Shanker Lane Cove Council APOLOGY: NIL 1. The meeting commenced at 4.00pm 2. Declarations of Interest - Nil 3. Business Items ITEM 1 - 2013SYE105 - Lane Cove - DA13/194 - Stage 1 Concept plan - 2-22 Birdwood Ave & 1-15 Finlayson Street, Lane Cove 4. Public Submission - Darren Waters Addressed the panel against the item Dan Brindle Addressed the panel against the item Nick Turner Addressed the panel on behalf of the applicant Paul Walter Addressed the panel on behalf of the applicant Melanie Freelander Addressed the panel on behalf of the applicant Kevin Driver Addressed the panel on behalf of the applicant 5. Business Item Recommendations ITEM 1 - 2013SYE105 - Lane Cove - DA13/194 - Stage 1 Concept plan - 2-22 Birdwood Ave & 1-15 Finlayson Street, Lane Cove 1. The majority of the Panel (for: John Roseth, David Furlong, Julie Savet-Ward and Trevor Bly; against: Soo Tee Cheong) resolves that it would approve the amended application submitted on 21 March 2014, subject to a set of suitable conditions. 2. The Panel has considered the planning assessment report and the supplementary report, both of which recommend refusal, mainly on the grounds that the proposal does not comply with the FSR and height controls. However, the Panel has given major weight to the benefit of the site amalgamation and the consequential opportunities for good site landscaping as well as the simplification of parking and vehicular entry/exit. In the majority Panel's view, the public benefit of this amalgamation is commensurate with the relatively minor non-compliance with the FSR control. As concerns the additional height above 18m, the Panel notes that parts of the proposal are below 18m and that the top storey is well recessed. 3. The Panel wants it to be noted that its acceptance of non-compliance in this case should not be regarded as a precedent for other developments. The value of this amalgamation is that it brings the entire block into redevelopment, ensuring that no isolated pockets of single housing are left. 4. The Panel requests the planning assessment officer to prepare, by 11 April 2014, a set of suitable conditions. Following receipt of these conditions, the Panel will determine the application by communicating by electronic means. 5. Soo Tee Cheong voted against the proposal on the grounds of non-compliance with the height control, which, in his view, had a negative impact on Birdwood Avenue and Rosenthal Street. ... The meeting concluded at 6.50pm. Endorsed by John Roseth Chair, Sydney East Joint Regional Planning Panel 26 March 2014

The JRPP's Reasons for Decision

1. The JRPP decisions speak for themselves, but those members who participated have each provided a SOR (Exhibit A4, being tabs 9 to 13, fols 72 - 116, of the Court Book). Some biographical information on some of the panellists can be found on the JRPPs' website, and a copy is attached to Ku's affidavit (as Annexure 'A'). Several of them are known to the Court.
2. The Panel voted 4:1 in favour of the DA, subject to conditions as described in the Record of Decision dated 4 June, and their SORs follow a standard form, recording the relevant details of the item before the panel, the evidence and other material considered by it, the reasons of the majority and of the minority, the Council's recommendation, the meetings and inspections held, and all the "relevant mandatory considerations".
3. The most pertinent elements of each SOR, including that of the minority member (Exhibit A4, tab 13), are (Exhibit A4, fols 73, 82, 91, 100, and 109): Environmental planning instruments: • SEPP (BASIX) 2004 • SEPP 65 - Design Quality of Residential Flat Development • Lane Cove LEP 2009 Draft environmental planning instruments: none applicable 9 Relevant mandatory considerations Development control plans: Lane Cove DCP Planning agreements: none Regulations: none The likely impacts of the development, including environmental impacts on the natural and built environment and social and economic impacts in the locality The suitability of the site for the development Any submissions made in accordance with the EPA Act or [EPA Reg] The public interest Council Assessment Report and Supplementary Report 10 Evidence and other material considered by the panel Correspondence attached to Agenda and Business Paper 26 March 2014, including Council referrals and public submissions Letter on behalf of proponent dated 21 March 2014 and annexures, including amended plans Panel met with Council officers on 22 January 2014 11 Meetings and site inspections by the panel Panel meeting 26 March 2014 Email communications between panel members between 7 May 2014 and 3 June 2014

1. All the documents before the JRPP (listed in SOR item 10) are included in Exhibits A1 and A2, and some are duplicated elsewhere in the evidence. (See also Exhibit Y2)

The JRPP Determination is Issued by Council

1. On 16 June 2014, pursuant to ss 80(1)(a) and 83B of the EPA Act, Council issued the official Notice of Determination of the "staged" or "concept" DA, as it had evolved (Exhibit A2, tab 60), together with a stamped approved plan (that at tab 61), reflecting that evolution (c.f. Exhibit A1, fol 196). The consent was stated (at fol 934 and on the plan) to operate from 4 June 2014, and to lapse on 4 June 2019.
2. For completeness, I now set out the relevant parts of Council's Notice of Determination signed off by Michael Mason, Executive Manager, Environmental Services, and issued on 16 June 2014 (tab 60). (I have omitted those conditions clearly not implicated in the present challenge, namely 10 to 54): Dear Sir, Notice of Determination of Development Application issued under the Environmental Planning and Assessment Act 1979, Section 80(1)(a) and Section 83B Staged Development Application No.: DA 194/13 Address: 2-22 Birdwood Avenue and 11-15 Finlayson Street, Lane Cove Proposed Development: Stage 1 Concept DA for residential flat development. You are advised that the abovementioned Staged Development Application has been determined by the Sydney East Joint Regional Planning Panel at its meeting of 26 March 2014, with confirmation of their decision dated 4 June 2014, when it was resolved that the application be approved subject to the following conditions:- GENERAL 1. Development consent is granted to staged development application No. DA13/194 that sets out a concept proposal for the development of the land known as 2-22 Finlayson Street and 11-15 Birdwood Avenue, Lane Cove comprising of the 17 lots listed below ("the site") for the purpose of four (4) residential flat buildings with combined basement car parking, on-site landscaping and a pedestrian through site link subject to compliance with the following conditions: Lot 81 DP10155 Lot 82 DP10155 Lot 831 DP844967 Lot 832 DP844967 Lot 84 DP10155 Lot 85 DP10155 Lot 86 DP10155 Lot 87 DP10155 Lot 88 DP10155 Lot 892 DP855900 Lot 891 DP855900 Lot 502 DP868066 Lot 501 DP868066 Lot 91 DP10155 Lot 75 DP10155 Lot 76 DP10155 Lot 77 DP10155 2. This consent does not authorise the carrying out of development on any part of the site unless consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site. 3. While this consent remains in force, the determination of any further development application in respect of the site cannot be inconsistent with this consent. 4. This development consent will lapse 5 years after the date of the determination unless consent is granted to a further development application in respect of the site to carry out development on the site that is consistent with this consent and the development authorised by that consent has commenced on the site. 5. All buildings that are proposed to be erected on the site must be contained wholly within the concept building envelopes shown in drawing number MP100-001 Rev S2 prepared by Turner and dated 20/03/2014, except as amended by the following conditions. 6. A detailed staging plan showing the development to be carried out on the site in a sequential manner must form part of the first further development application. 7. The combined floor space ratio for all buildings on the site must not exceed 1.85:1 and the maximum number of dwellings that may be constructed on the site must not exceed 245. 8. Any residential flat building that is proposed to be erected on the site must be designed in accordance with: (a) the design quality principles in [SEPP 65]; and (b) the publication [RFD] Code (a publication of the Department of Planning, September 2002); and (c) the relevant provisions of [the LEP]; and (d) the relevant provisions of [the DCP] except where modified by this development consent. 9. Any residential flat building that is proposed to be erected on the site must: (a) be designed with sufficient modulation and articulation and ensure quality and definition to the street frontage; and (b) be designed to ensure that the Crime Prevention Through Environmental Design principles are met. ... 55. Each further development application will assess each proposal having regard to prevailing provisions at the time. Advisory Note: ... The reason for the Council's consent being subject to the aforementioned conditions is to ensure that the proposal complies with the requirements of the [EPA Act] and Regulations thereunder and the Building Code of Australia and does not adversely effect the amenity of the area and/or the character of the neighbourhood. This consent is to operate from 4 June 2014. This consent is to lapse on 4 June 2019. ...

E: The grounds of challenge

1. The Council's challenge to the decision of the JRPP to grant consent to the "concept development application" centres upon the application of cl 4.6 of the LEP to the development standards contained in cls 4.3 (height), and 4.4 (FSR), of the LEP.
2. Mr Galasso submits (par 39) that there are five requirements to be satisfied before a cl 4.6 variation/dispensation can be granted, and they were not satisfied in the present case. Those five requirements are: a. The applicant must make a written request seeking to justify the proposed contravention of the development standard, b. The justification within the applicant's written request must demonstrate - i. That compliance is unreasonable or unnecessary in the circumstances of the case, and ii. That there are sufficient environmental planning grounds to justify contravention, c. The consent authority must be satisfied that the applicant's written request adequately addresses the matters required to be demonstrated as set out in paragraph b. above, d. The consent authority must be satisfied that the proposed development will be in the public interest because it is consistent with both - i. the objectives of the development standard, and ii. the objectives for development within the zone in which the development is proposed, and e. The concurrence of the Director-General of the Department of Planning and Environment must be obtained.
3. The twelve grounds of challenge in Council's amended summons, six each in respect of the two relevant standards (Height and FSR), may be briefly summarized as follows: (1) & (2) The written requests regarding Height and FSR were not compliant with cl 4.6(3). (3) & (4) The JRPP, acting reasonably, could not have been satisfied that those requests adequately addressed the matters in cl 4.6(3), and so lacked power to consent under cl 4.6, rendering the DC invalid. (5) & (6) The JRPP, in purporting to exercise the power under cl 4.6, failed to consider relevant matters required by cl 4.6(4)(a) (ii), namely the objectives of the development standards in cls 4.3 and 4.4, and so lacked power to consent under cl 4.6, rendering the DC invalid. (7) & (8) The JRPP, in purporting to exercise the power under cl 4.6, in respect of non-compliance with cls 4.3 and 4.4, considered irrelevant matters, namely the benefits of the amalgamation of the site and the simplification of parking, and vehicular entrance and exit, and so misdirected itself at law, such that the power to consent under cl 4.6 was not available, rendering the DC invalid. (9) & (10) The JRPP could not have been satisfied as to the matters required to be demonstrated, in respect of non-compliance with cls 4.3 and 4.4, under cl 4.6(3), such that the power to consent under cl 4.6 was not available, rendering the DC invalid. (11) & (12) The concurrence of the Director-General was neither sought nor obtained, in respect of the proposed exercise of the power under cl 4.6, to allow non-compliances with either or both of cls 4.3 and 4.4, such that the power to consent under cl 4.6 was not available, rendering the DC invalid.

The Council

1. Mr Galasso SC, who appeared (with Mr Astill) for the applicant Council, said that, when one uses the decision in Wehbe ([64] above) as a reference point with respect to the manner in which a written request can demonstrate that compliance with a particular standard is unreasonable/unnecessary in the circumstances, the written requests made by Orca simply do not "demonstrate" that matter. Mr Galasso said at (Tp24 LL 41 - 44): primarily they did not demonstrate that compliance with the development standard is unreasonable or unnecessary as that phrase is understood as it were in planning law by reference to the decision of Wehbe in particular,
2. It was also submitted that the requests did not provide any "sufficient environmental planning grounds to justify the contraventions" (Council's written subs, par 51).
3. Accordingly, the power to grant consent to a contravening development never arose, because a written request was not made pursuant to cl 4.6(3), the existence of such a request being a jurisdictional fact (Grounds 1 and 2).
4. Clause 4.6(4) provides that consent must not be granted to a contravening development, unless the consent authority is satisfied that the written request has "adequately addressed" the matters "required to be demonstrated" in the request (cl 4.6(4)(a)(i)), and that the proposed development will be in the public interest, being consistent with the objectives of the particular standard sought to be contravened, and of the zone in which the development will be approved (cl 4.6(4)(a)(ii)). As a logical consequence of its claims in respect of Grounds 1 and 2, the Council alleges (Grounds 3 and 4) that the JRPP could not have been reasonably satisfied that the written requests "adequately addressed" the relevant matters, rendering the approval invalid: Associated Provincial Picture Houses Ltd v Wednesbury Corporation ("Wednesbury") [1948] 1 KB 223.
5. It is alleged that the JRPP failed to consider relevant matters in reaching its satisfaction that the development was in the public interest (cl 4.6(4)(a)(ii)), namely the objectives of the relevant standards and of the R4 zone, matters consideration of which was mandated by cl 4.6(4)(a)(ii) (Grounds 5 and 6).
6. It is also alleged that the JRPP took into account irrelevant matters during its consideration of the public interest, brought about, the Council says, by a misapplication of the appropriate test. In respect of the standards, those irrelevant matters were (a) the benefits of site amalgamation, and (b) the simplification of parking and vehicular entrance and exit (Grounds 7 and 8).

Orca's and Yifang's positions

1. On Orca's behalf, Mr Miller SC argued that the Council's challenge must fail, because, on a proper construction of the consent, the JRPP did not engage the power under cl 4.6 to grant the consent in contravention of the height/FSR standards. Rather, the "concept approval" set "hard outer limits" (subs par 34), beyond which further DAs could not permit exceedence, even with the benefit of cl 4.6 approvals. In this sense, consideration of whether the final development should have the benefit of cl 4.6 was "deferred" to any subsequent consents.
2. Orca submitted (par 3): Grounds of Appeal 1 to 12 do not arise [because]: (a) the Concept Development Consent, as modified by conditions, does not by its terms authorise the carrying out of development (in the sense of physical works or the use of land of the kind anticipated under s.4 of the EPA Act) in contravention of clause 4.3(2) and / or clause 4.4(2) of the LEP; and (b) the Concept Development Consent does not operate such as to dictate that any subsequent (and detailed) development application over the land the subject of the Concept Development Consent must necessarily result in an approval that in terms will result in the carrying out of physical works in contravention of clause 4.3(2) and / or clause 4.4(2) of the LEP (and absent a cl4.6 dispensation).
3. Yifang, represented by Mr Tomasetti SC (with Mr Johnson), took a more "direct" approach, arguing that the JRPP lawfully, and in fact, exercised its power to grant the contravening consent, pursuant to cl 4.6.
4. Mr Miller, on Orca's behalf, said his was a "fall back argument" (Tp49, L23): if it is found that the consent did authorise development that contravened the development standards, then Orca's argument "obviously doesn't need to be addressed by your Honour, because it will be subsumed in Mr Tomasetti's submission" (Tp49, LL17 - 20).
5. I will, therefore, address first the contest as between the Council and Yifang.
6. However, before going more deeply into the submissions made by the parties, the Court will deal with the various authorities to which I was referred throughout the hearing.

The "Wehbe Methods"

1. The decision of Preston ChJ in Wehbe ([64] and [97] above) concerned the application of State Environmental Planning Policy No 1 - Development Standards (NSW) ("SEPP 1"), which is not available in the present case, but relevant terms of which are substantially similar to cl 4.6 (see [30] above).
2. In Wehbe, the applicant for consent sought approval for the demolition of improvements on certain land, and for the subdivision of that land into two equal allotments. As the proposed allotments were to be less than the minimum allotment size under the relevant LEP, the DA was accompanied by an objection under SEPP 1, requesting approval notwithstanding the contravention of the development standard. The Council determined to refuse the application, and gave reasons, relevantly including ([5]): Proposed Lot 1 will have an area of 514.4 sqm. Proposed Lot 2 will have an area of 514.1 sqm. This is not in keeping with the requirements in Clause 11(2) of Pittwater Local Environmental Plan 1993 which requires a minimum lot area of 700 sqm. The [SEPP 1] objection is not supported as compliance with the statutory development standard has not been found to be unreasonable or unnecessary in the circumstances of this case.
3. The applicant unsuccessfully appealed in Class 1 of this Court's jurisdiction against that refusal.
4. His Honour noted (at [38]), that, under the SEPP 1, the applicant must address whether compliance with the relevant development standard is "unreasonable or unnecessary in the circumstances of the case". The consent authority, in that case the Court, must be satisfied that the objection is well founded (cl 7 of SEPP 1) before determining to grant consent.
5. His Honour explained (at [42]ff) the numerous ways in which an applicant may establish that compliance is "unreasonable or unnecessary in the circumstances" (some citations omitted): 42. The 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" ... 44. … although this way is commonly invoked, it is not the only way to establish that compliance with a development standard is unreasonable or unnecessary 45. A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary: ... 46. A 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: ... 47. A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable: ... 48. A fifth way is to establish that "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary": ... 49. However, care needs to be taken not to expand this fifth way of establishing that compliance is unreasonable or unnecessary beyond its limits. It is focused on "particular land" and the circumstances of the case. Compliance with the development standard is unreasonable or unnecessary not because the standard is inappropriate to the zoning, but rather because the zoning of the particular land is found to be unreasonable or inappropriate. If the particular land should not have been included in the particular zone, the standard would not have applied, and the proposed development would not have had to comply with that standard. To require compliance with the standard in these circumstances would be unreasonable or unnecessary. 50. However, so expressed, this way is limited. It does not permit of a general inquiry into the appropriateness of the development standard for the zoning. An objection would not be well-founded by an opinion that the development standard is inappropriate in respect of a particular zoning (the consent authority must assume the standard has a purpose): ...

Winten v North Sydney

1. The decision of Lloyd J in Winten Property Group Ltd v North Sydney Council ("Winten") [2001] NSWLEC 46; 130 LGERA 79, like the later Wehbe, concerned an application for a SEPP 1 dispensation. A Commissioner of this Court refused six DAs - one for the subdivision of land into five lots, and the remainder for the erection of a single dwelling on each of those lots.
2. The relevant clause of the LEP (cl 12) limited the height of any building in residential zones to two storeys, and each proposed dwelling was at least three storeys in height. The proposal also contravened a clause (13A), which provided that a dwelling-house must not be erected within the applicable zone unless 50% of the site was landscaped area. A SEPP 1 application was made in respect of both contraventions.
3. The Council refused the application, but, on appeal to the Court, the Commissioner determined to grant the contravening consent.
4. The Commissioner held (at [35] of his decision): Given the configuration of the proposed buildings and in particular their relationship to the ground level deemed to be a 'natural ground line' as defined in the LEP, the development is seen as entirely acceptable as amended and should be supported by the relief available under [SEPP 1]. The application of a storeys height control as contained in the LEP in this instance would be both unreasonable and unnecessary. ... Negotiation between the consultants established that departures from the 50% standard are in all instances quite small, even if taken on the basis of Ms Laidlaw's more pessimistic figures. The one exception to this generality is lot 2 which appears to be approximately 13% below the nominated figure. Given the general configuration of lot 2, particularly as now amended, again it is not seen as reasonable to rigidly apply the statutory 50% in this instance.
5. The Commissioner, therefore, determined that compliance with these standards was "unreasonable or unnecessary in the circumstances", and consent should be granted.
6. The Council then brought its s 56A appeal, which was heard by Lloyd J, who overturned the Commissioner's decision, finding that he had misapplied the test as to whether compliance was "unreasonable or unnecessary in the circumstances of the case".
7. In determining the question of whether the Commissioner erred in law in permitting the development in contravention of cl 12, His Honour cited (at [25]) the following passage from Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438, per Cripps J, as providing the "classic statement of the approach to be taken when considering an objection under SEPP No 1": It has been established by a series of decisions in this Court that generally in order to maintain an objection that compliance with a standard is unreasonable or unnecessary, it is first necessary to discern the underlying object or purpose of the standard. To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. Although the court has urged a generous application of SEPP No 1 and has repeatedly declined to attempt exhaustively to define the limits of the dispensing power and, in particular, what is embraced by the expression 'circumstances of the case', it is now established that it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose. … Furthermore it is now established that although the discretion conferred by SEPP No 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.

The Written Requests made by the Proponent

1. The written requests made by Orca made explicit reference to both Wehbe and Winten to justify its contraventions. Those requests were annexed to the SEE (Exhibit A1, fols 113 - 146).
2. As their adequacy, and the JRPP's assessment of them, are at the heart of nearly all of the Council's grounds of challenge, it is necessary to discuss them in regrettably lengthy detail.

The height standard request

1. The proposal sought to contravene the height standard (see [25] above) in the following respects (fol 113): The proposed Stage 1 concept seeks to vary this standard as follows:

• Building A - up 5 metres, with a maximum building height of RL 88.0 and 23 metres;
• Building B - up to 8.3 metres, with a maximum building height of RL 92.7 and 26.2 metres;
• Building C - up to 4.5 metres, with a maximum building height of RL 93.6 and 22.5 metres; and
• Building D - up to 6.4 metres, with a maximum building height of RL 94.6 and 24.4 metres.

1. However, as a result of communication between the Council and the proponent, the building heights were amended, reducing the proposed exceedences (see [78] above).
2. The request then recited the relevant standard (cl 4.3), and the clauses on which it relied to vary the standard, namely cls 4.6(3), 4.6(4) and 4.6(5), (see [30] above).
3. It then stated (at fol 119): The requirement for consideration and justification of a Clause 4.6 variation necessitates an assessment of a number of criteria. It is recognised that it is not merely sufficient to demonstrate a minimisation of environmental harm to justify a Clause 4.6 variation, although in the circumstance of this case, the absence of material impacts on adjacent properties is of considerable merit. The proposed variation from the development standard is assessed below against the accepted "5 Part Test" for the assessment of a development standard variation established by the NSW Land and Environment Court in [Wehbe] and the principles outlined in [Winten].
4. The request (at par 5.1 of fol 119) sought to justify the contravention by demonstrating that "the objectives of the standard are achieved notwithstanding non-compliance with the standard" (the first of the five "Wehbe methods"). The objectives of the height standard were then set out, and the request stated: Consistency with those objectives, and the absence of any environmental impacts, would demonstrate that strict compliance with the height standard would be both unreasonable and unnecessary in this instance. The contentions below demonstrate how this proposal is consistent with the objectives in Clause 4.3:
5. The request dealt with each objective in turn, but firstly with minimising overshadowing, loss of privacy, and visual impacts on neighbouring properties (fols 120 - 121).

The FSR standard request

1. The written request justifying non-compliance with the FSR standard at cl 4.4 of the LEP (to be found in Exhibit A1, at fols 130 - 146) repeated much of what was put forward in the height standard request, so I need not go into as much detail.
2. The request relied on the first and fifth of the Wehbe principles/methods (fols 131 and 139), namely: (i) the objectives of the [FSR] standard are achieved notwithstanding non-compliance with [it]; ... (v) the zoning of the particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it applies to the land and compliance with the standard would be unreasonable or unnecessary. That is, the particular parcel of land should not have been included in the particular zone.
3. The objective of the FSR standard is to ensure that the "bulk and scale of the development is compatible with the character of the locality".
4. The request argued (fol 132) that the proposed exceedence of the FSR control ratio of 1.7:1 by 0.25:1 would result in only a 14% increase in apartment yield, or 30 additional units, and that adjacent land at 1 Finlayson Street was unlikely to be redeveloped to the maximum 1.7:1 FSR. Accordingly, the proposal "picks up" this unrealised yield, estimated to be 15 units, meaning that the additional apartment yield is only 7% above what the controls anticipate for the entire block.
5. The appropriateness of this additional yield must be assessed in terms of: 1. Visual bulk and scale; 2. Consequential overshadowing; and 3. Traffic generation caused by additional density.
6. In terms of criterion (a), visual bulk, the request noted (at fol 133) the "varied skyline" proposed, and the proposed articulation and setback of the buildings within their environment, and argued (at fol 134): As to whether the additional 0.25:1 on the site, or additional 30 apartments (approximately) has a visual impact consistent with what would reasonably be expected under the controls, we contend that the impact is unidentifiable at street level. Building "bulk" is distributed appropriately across the site to allow for adequate separation between buildings; adequate articulation in built form is capable of being provided to "soften" the visual aesthetic of the buildings; landscaping on the site is maximised and is in excess of Council's requirements; and the built form does not compromise the ability for the site or the approved RFBs to achieve the amenity requirements of the RFDC[ode].

G: Consideration

1. Having set out the written requests in detail, and the cases that were said to inform the approaches they relied upon to demonstrate that compliance with the standards was unreasonable/unnecessary, it is appropriate now to turn to consider the numerous grounds that challenge the requests, and the JRPP's treatment of them.

Grounds 1 and 2

1. Grounds 1 and 2 ([96] above) assert that the written requests made by Orca, regarding Height and FSR, do not, as an objective fact, "seek to justify the contravention by demonstrating" either that compliance with the standards is unreasonable or unnecessary in the circumstances, or that there are sufficient environmental planning grounds to justify non-compliance. Accordingly, the written requests do not meet the description required by cl 4.6(3), and, as such a request is a jurisdictional fact, the power to grant the consent never arose under cl 4.6.

Compliance Unreasonable or Unnecessary

1. The requests made by Orca (see [128] - [169] above), purported to justify the variations sought, by reliance on Wehbe methods one (see also Winten) and five (see [134], [135] and [150] above). Essentially, it is argued by the Council that neither request appropriately applied either method.
2. With respect to the height standard in cl 4.3 ([25] above), the Council submitted that the request failed to show that its objectives were met, notwithstanding the non-compliance (Wehbe 1/Winten). It was submitted that this was clear from the request itself (Council's outline of opening, par 49): As to Overshadowing - The statement concedes that "there is a significant amount of design work to be undertaken" and consequently "it is difficult to demonstrate the exact levels of solar access" for the units within the development [Exhibit A1, fol 120], The request goes on to assert that there will be "appropriate levels of internal solar access". This is self-evidently not the same as minimising overshadowing as stated in the objective, The written request demonstrates that, as a result of non-compliance, there will be additional overshadowing of 3-9 Finlayson Street and 17-21 Finlayson Street [Exhibit A1, fols 120 - 121], The written request seeks to justify these reductions in sun access by reference to the [RFD Code] which is unrelated to the objectives of the height control, As to Loss of Privacy The written request demonstrates that "at higher levels" (this must at least include the levels which do not comply with the height control), "screening or other architectural treatments to balconies and habitable rooms" will be required to achieve adequate privacy [Exhibit A1, fol 121], As to Visual Impact The written request demonstrates that there will be visual impacts but these are mitigated by separation distances and may be further aided by "detailed design and articulation of building facades at detailed design stage", As to Sunlight for the Public Domain The written request demonstrates that there will be increases in overshadowing to Coxs Lane, Finlayson Street and Rosenthal Street [Exhibit A1, fols 121 - 122]
3. With respect to Wehbe 5, it was said (at pars 50 - 51): 50 ... the written request fails to demonstrate that the zoning (height) control is inappropriate. It merely asserts that the concept plan proposed height and FSR "would be seen to be more appropriate for the land". [Exhibit A1, fols 123 - 124]. 51 The written request does not argue that the zoning is inappropriate. In fact it expressly states that the R4 High Density Residential zoning is appropriate. It merely argues that the controls under that zone are not. This is a legal error as identified in Wehbe [at 49] [(see [115] above)].

Sufficient Environmental Planning Grounds to Justify non-compliance

1. In respect of both the height standard and FSR requests, it was said that "this element of the requirement of clause 4.6(3)(b) is not expressly addressed at all and the written statements are defective on this basis alone (pars 52 and 65).
2. Although the requests asserted that the standards are not appropriate because of the "benefits provided by amalgamating the existing 17 allotments" (pars 53 and 66), there was no attempt to make a "logical connection" between this benefit, and the appropriateness of non-compliance with the standards, "nor could there be" (pars 54 and 67).

Consideration of Grounds 1 and 2

1. Mr Galasso acknowledged that to succeed on these grounds, the Court must be satisfied not only that the existence of a written request is a jurisdictional fact (which it clearly is), but that it is a jurisdictional fact that that request, objectively speaking, seeks to justify the contravention by demonstrating the matters referred to in cl 4.6(3)(a) and (b), "that is, a fact which this Court can determine for itself, as distinct from a matter at the discretion of the decision maker, in this case, the JRPP" (Tp26, LL4 - 28).
2. For the reasons that follow, I consider that Mr Galasso goes too far in asserting that it is jurisdictional fact that the written request must "justify the contravention by demonstrating" the matters referred to in cl 4.6(3)(a) and (b).
3. Mr Galasso cited Woolworths Ltd v Pallas Newco Pty Ltd ("Woolworths") [2004] NSWCA 422; 61 NSWLR 707 (Spigelman CJ, Mason P, Handley JA, Sheller JA and Cripps AJA), in support of his assertion.
4. In Woolworths, the question before the court was whether the characterisation of the use of land for a permissible purpose, namely, a drive-in takeaway, was a jurisdictional fact, "with the consequence that it was for the Land and Environment Court itself on the evidence before it to determine whether the application was for a drive-in take-away establishment" (at [184]), as opposed to a matter left to be determined at the discretion of the consent authority. The Court held that the characterisation of the use of land was a jurisdictional fact.
5. Spigelman CJ, writing in the majority, said (at [5] - [9] - some citations omitted): 5 The case law and legal literature contains a great deal of terminological confusion about the concepts of "jurisdiction" and "jurisdictional facts". The authoritative statement of the relevant concept for Australia is set out in the joint judgment of the High Court in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135; 106 LGERA 419 at [28]: "The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome." 6 The issue is one of statutory construction. What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional. 7 What is involved is a specific application of the fundamental principle of judicial review of statutory decision-making, which Brennan J expressed in Attorney-General (NSW) v Quin [[1990] HCA 21] (1990) 170 CLR 1 at 35-36: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power." 8 This has become the most frequently cited statement of principle in subsequent judgments in the High Court. (See, e.g. ... City of Enfield at [43].) 9 The determination of whether or not a fact is jurisdictional in the requisite sense can give rise to considerable difficulty and is a matter upon which reasonable minds can differ. There is no bright line between jurisdictional error and error in the exercise of a jurisdiction. ... Nevertheless, the Court, being called upon to do so, must determine whether the repository of a statutory power has acted, or proposes to act, in a manner which transgresses the limits upon the exercise of the power that Parliament has conferred.

Grounds 3 and 4

1. These grounds ([96] above) are based on the principle enunciated in Wednesbury, namely, that a decision is invalid if it is so unreasonable that no rational or logical decision maker could have made it. Council says that the JRPP, acting reasonably, could not have been satisfied that the requests adequately addressed the matters in cl 4.6(3).
2. In Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73, Biscoe J usefully outlined the principles which apply to a challenge based upon the "unreasonableness" of the decision (at [114] - [116]): 114 It is convenient to call this ground "serious irrationality" since not every rational or logical lapse will suffice. That is the basis on which I would distinguish the principle that there is no error of law in simply making a wrong finding of (non-jurisdictional) fact: … Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321 at 356 (Bond); ... In Bond Mason CJ held at 356: "Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place". Acceptance of serious irrationality as a basis for judicial review resolves, in effect, the "serious question" whether such a suggested error "is of the kind to which the Wednesbury principle is directed": [Minister for Immigration and Multicultrual Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611] at [40] per Gleeson CJ and McHugh J. It is difficult to reconcile the serious irrationality ground with the majority decision in Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 at 155-156 (per Glass JA, Samuels JA agreeing) that even a perverse finding of fact is not an error of law. The dissenting view of Kirby P in Azzopardi at 151 has prevailed that there is an error of law where there is "manifest error or illogicality in the reasoning process" or reliance on facts which "indicate such an unexplained perversity as to suggest that an error has taken place". 115 This serious irrationality ground sets the same very high standard as for manifest (Wednesbury) unreasonableness. Thus, an attacked finding of fact must be one that no rational or logical decision-maker could have made: … [T]he characterisation of a decision as seriously irrational or illogical should "not receive an affirmative answer that is lightly given": ... 116 It has been said that Wednesbury unreasonableness is "confined to the exercise of a discretion in circumstances where no reasons are required" or (alternatively) that there is an overlap between Wednesbury unreasonableness and a standard of rationality: [Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611] at [128] per Crennan and Bell JJ. In New South Wales, the exercise of a discretion "in circumstances where no reasons are required" is limited in scope because court rules and practice notes provide machinery whereby an applicant for judicial review can obtain reasons from the decision-maker: ... Land and Environment Court Practice Note Class 4 proceedings at [14(b)]. In four decisions of the New South Wales Court of Appeal, the serious irrationality formula has been treated as synonymous with Wednesbury unreasonableness itself in a non-jurisdictional fact context. …

Grounds 5 to 8

1. Clause 4.6(4)(a)(ii) of the LEP requires the consent authority to reach a state of satisfaction that the proposed development will be in the public interest - 1. because it is consistent with the objectives of the particular standard; and 2. because it is consistent with the objectives for development within the zone in which the development is proposed to be carried out.
2. Grounds 5 and 6 allege that the JRPP failed to consider relevant matters when reaching its purported satisfaction, namely, it did not consider whether the proposal was consistent with the objective of either the standards or the R4 zone.
3. Grounds 7 and 8 allege that the JRPP took into account irrelevant considerations in reaching that state of satisfaction.
4. It was submitted by Mr Galasso that the JRPP applied the "wrong test" when addressing the issue of public interest under cl 4.6(4)(a)(ii). That clause requires consideration of the proposal in light of the objectives of the relevant standards and zone, and a determination of whether the proposal was consistent with them.
5. He claims that, instead of undertaking this task, the JRPP embarked on a merit assessment of the proposal, which involved asking itself "whether the non-compliances, when balanced against certain perceived benefits of the proposal, were outweighed by those benefits" (Council's subs, par 86). This error led the JRPP to consider a number of irrelevant matters that went to the perceived benefits of the proposal including, the fact that the non-compliances were "minor" (par 88), the environmental impacts of the development were "acceptable" (par 89), and the benefits flowing from the amalgamation of the various lots (par 90).
6. It was submitted that those considerations drew the JRPP's attention away from the relevant consideration, namely consideration of the objectives of the particular R4 zone, and of each of the height and FSR standards, and of whether, in light of those objectives, the proposal was consistent with them, and, therefore, in the public interest (par 74).
7. Mr Galasso further submitted (par 77) that the "existence of material generally before the consent authority of relevance to the question is insufficient. Positive attention to the relevant matters is required and the making of particular findings". In support he cited the following passage of Preston ChJ in Conservation of North Ocean Shores Inc v Byron Shire Council ("North Ocean Shores") [2009] NSWLEC 69; 167 LGERA 52, at [77]: In relation to the applicant's material, as the Council Planning Report correctly noted, "the comments provided by the Applicant within the Statement of Environmental Effects and additional information offer very little to demonstrate that the proposed works are consistent with the objectives of the 7(k) Habitat Zone". It is not to the point, as the second and third respondents sought to argue, that there is material in the Statement of Environmental Effects and accompanying assessments that might be said to be relevant to the subject matter of the objectives of the 7(k) Habitat Zone, such as the vegetation and wildlife and the impacts on them. The mere existence of such general material without any analysis of that material for the purpose of satisfying the requirements of cl 9(3) is insufficient. Clause 9(3) requires separate consideration and satisfaction from the merit considerations of the development, which only come into play if cl 9(3) if satisfied. Clause 9(3) requires positive attention and the making of particular findings and inferences, having regard to the particular wording of cl 9(3) and of the objectives of the relevant 7(k) Habitat Zone. However, the development application, Statement of Environmental Effects and accompanying assessments do not pay positive attention to cl 9(3) and do not contain particular findings or inferences demonstrating that the proposed development is consistent with the objectives of the 7(k) Habitat Zone.

Grounds 9 and 10

1. Grounds 9 and 10 assert that that the JRPP could not have been satisfied that the written requests "adequately addressed" the matters listed in cl 4.6(3), because the application was only for a "concept approval", with final details left to be determined in subsequent DAs. Accordingly, there was not enough information before the JRPP to reach a state of satisfaction as to whether the proposal was consistent with the objectives of the height and FSR standards notwithstanding the non-compliance, and, therefore, compliance with them was unreasonable or unnecessary in the circumstances.
2. Based on my findings as to the evidentiary material before the JRPP (see [207] - [228] above), these grounds must also fail. Although the application was for only a "concept approval", with "many details to be addressed at a later stage", in my opinion the detailed written requests, and the technical information provided in support of them, contained more than enough information to enable the JRPP draw the relevant conclusions under cl 4.6(4).

Grounds 11 and 12

1. Grounds 11 and 12 allege that there was no concurrence granted by the Director-General to the JRPP as the "consent authority", and that, accordingly, the JRPP could not be satisfied that such concurrence had been granted, as required under cl 4.6(4).
2. Pursuant to the EPA Regulations, the Director-General may issue a written notice to a consent authority that permits it to assume that concurrence has been given (cl 64 - see [40] above). The department issued a planning circular to local councils on 9 May 2008 (set out above at [32]) that stated that they could assume the Director-General's concurrence in respect of cl 4.6 variation requests.
3. Mr Galasso submitted that, as this circular was addressed to Councils, and not to the JRPP, who was the relevant consent authority in the present case, the JRPP was not entitled to assume that concurrence had been given, and hence could not be satisfied, as it was required to be, pursuant to cl 4.6(4)(b), that it had been given.
4. In response to this assertion, both Orca and Yifang relied upon submissions contained within a letter sent by the solicitor representing the JRPP (Ms Sims) to the Council's lawyers, on 1 October 2014, i.e. after these proceedings had been commenced, urging them to withdraw these grounds.
5. The subject letter was annexed to the written submissions filed on Orca's behalf on 3 November 2014 (see [12] above). It asserted in plain terms that, "Contrary to the applicant's argument, Lane Cove Council was the consent authority for the purposes of obtaining concurrence in respect of the development", so the planning circular was sufficient to satisfy the requirements of cl 4.6(4)(b).
6. The letter set out the relevant provisions, and then said that: ... the following propositions are clear: (a) while the Sydney East JRPP had the function of determining the [DA], and was the consent authority to the extent of exercising that function, it did not have the function of obtaining the concurrence of the Director-General. The Sydney East JRPP was not the consent authority for all purposes in relation to the development application; (b) while Lane Cove Council was not the consent authority in the sense of exercising the function of determining the application, it was otherwise the consent authority for the development in question, including in relation to exercising the function of obtaining the concurrence of the Director-General for the development; (c) the assumed concurrence issued to Lane Cove Council by the Director-General in May 2008 was effective written notice given to the consent authority, for the purposes of cl.64(1) of the Regulation; (d) the condition in cl.4.6(4)(b) of [the LEP] was satisfied because the concurrence of the Director-General was obtained by the consent authority with the function of obtaining such concurrence.

H: Conclusion and Orders

1. It follows from all I have written that I find that the Council has failed to make out any of its grounds of challenge, and, as Yifang contends, the written requests and the JRPP's assessment of the proposal were lawful.
2. Accordingly, it is unnecessary for me to address the "fall-back" argument put forward by Mr Miller on behalf of Orca (see [108] above).
3. Having lost its challenges, Council should normally be expected to pay the costs of its successful contradictors.
4. Most of the thirty respondents submitted, except on the question of costs, but, of the contradictors, Orca was silent on the costs issues, and Yifang submitted that costs should follow the event (Tp99), subject to possible apportionment if the Council succeeded (subs 42 - 43).
5. Mr Galasso submitted for the Council (Tp104) that, if the Council succeeded, it should get its costs, but, if its challenge failed, costs should be reserved.
6. In those circumstances costs will be reserved, but the parties (including the JRPP, if appropriate) are encouraged to negotiate.
7. I make the following orders: 1. The applicant Council's amended summons is dismissed. 2. Costs are reserved. 3. The Court Book, including Exhibit A4, is to remain in the Court file, but all other exhibits are returned.

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: 08 April 2015