Lannan v Inner West Council [2020] NSWLEC 1536 | Case summary

Land and Environment Court (NSW)|2020-10-22

The applicant's written request (Ex G)

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 at [42]-[51] and repeated in Initial Action at [17]-[21]:

the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
the development standard has been abandoned by the council;
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 not satisfied that the proposal is in the public interest because, for the reasons set out below, it is inconsistent with the R1 zone objective to provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings.

The proposal is inconsistent with the pattern of development established by neighbouring properties

The building envelope of the proposed first floor is located at the rear of the existing building, positioned over the existing skillion roof of the living room that opens onto the rear courtyard. I understand from the applicant's submissions and the plans in the Statement of Environmental Effects (Ex G) that the proposal was amended following the conciliation conference to locate the proposed first-floor bedroom at the rear of the dwelling, instead of its previous location behind the existing ridge to approximately mimic the form of the existing first-floor addition to the north-eastern neighbour at 7 Sardinia Place, driven by concerns about overshadowing the northern side courtyard of the adjoining property at 3 Sardinia Place. It is evident that the applicant has made a genuine attempt to find a solution that is acceptable to the intervenors.
I accept the applicant's submissions that the imposition of the deferred commencement conditions (Ex 20) would result in an unsatisfactory outcome and, in my view, an uncertain outcome, because they send the applicant back to the drawing board. I accept and agree with Mr Hugo's expert evidence and the applicant's submission that the addition of a first-floor main bedroom suite to the existing cottage is a reasonable expectation, given that three of the group of six weatherboard cottages include a partial first-floor addition or have obtained development consent for a partial first-floor addition.
It is evident from the development at 7 Sardinia Place that locating a well-designed addition behind the ridge of the original cottage maintains the character of the group of cottages when viewed from Sardinia Place and the contribution made by this group to the collective heritage significance of the HCA. The proposal, however, is inconsistent with the pattern of built form established by existing additions to cottages within the row and would introduce a discordant element to the row of cottages.
The attempt to eliminate any overshadowing of the northern side courtyard of the adjoining property at 3 Sardinia Place has been prioritised in the brief for the scheme in the current proposal, in an attempt to satisfy the concerns of the intervenors, but results in a form that is incompatible with adjoining development. The proposal increases the overshadowing of the rear courtyard of 3 Sardinia Place during the late morning of the winter solstice; it results in overlooking of neighbouring courtyards which requires the windows to be screened resulting in poor internal amenity; and it locates the building bulk at the rear of the existing building, over an existing skillion roof, in a position that is entirely contrary to the established form of additions to the rear of this group of cottages. The priority should instead be to locate the building bulk of a partial first floor in a position that is consistent with the development of neighbouring cottages and then to refine the building envelope to minimise the overshadowing of adjoining open space and glazing; recognising that the orientation of these cottages is not ideal and they are on very small allotments, so some amenity impacts are inevitable. It is difficult to achieve a reasonable outcome when the generic controls in LDCP 2013, which give little regard to scale, are strictly applied to small cottages on very small allotments with a rear orientation to the south-east. Measuring overshadowing only on the winter solstice is a blunt tool to genuinely assess the impacts of overshadowing caused by a building envelope for a first-floor addition on a row of small cottages. The impact of overshadowing would be more accurately judged by also measuring overshadowing on the equinoxes. The form of the addition to each cottage must work cooperatively within the group to best preserve the amenity of neighbouring cottages and courtyards.

Conclusion

The proposal is not in the public interest because the proposal is inconsistent with the R1 zone objective to be compatible with the pattern of surrounding building and landscaped areas.
The proposal is not compatible with the prevailing site layout and form of neighbouring dwellings, pursuant to the objectives for alterations and additions at C1.3 of LDCP 2013. The proposal does not maintain the visual unity of the group of cottages, pursuant to the objectives for heritage conservations areas at C1.4 of LDCP 2013.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. D/2019/271 for a partial first-floor addition to the existing cottage at 5 Sardinia Place, Birchgrove, is refused. 3. The exhibits, other than 1, 6, 7 and A, are returned.

Susan O'Neill Commissioner of the Court

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: 09 November 2020

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2019/271 for a partial first-floor addition to the existing cottage (the proposal) at 5 Sardinia Place, Birchgrove (the site) by Inner West Council (the Council).
The neighbours, at 3 Sardinia Place, Birchgrove, were joined as parties to the proceedings pursuant to s 8.15(2)(a) of the EPA Act on 2 March 2020 (Lannan v Inner West Council [2020] NSWLEC 20) (the intervenors).
The appeal was subject to conciliation on 4 March 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

Contravention of the landscaped areas for residential development in zone R1 development standard

The existing footprint of the dwelling results in a landscaped area of 13sqm and the development standard under cl 4.3A requires 20.5sqm of landscaped area. The proposal is for a first-floor addition and does not change the footprint of the existing dwelling.
The applicant provided a written request seeking to justify the contravention of the landscaped area development standard, pursuant to cl 4.6 of LLEP 2013 (Ex G).
Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ("Initial Action")). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows: (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) 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

Lannan v Inner West Council

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Judgment (6 paragraphs)

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Cases Cited (7)