Levy v Waverley Council

Land and Environment Court (NSW)|2023-03-16

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 144/2022, as amended, for the demolition of existing structures and the construction of two attached dual occupancy dwellings and strata subdivision (the proposal), at 39 Glenayr Avenue, North Bondi (the site), by Waverley Council (the Council).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 March 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
There are preconditions to the exercise of power to grant development consent for the proposal pursuant to cl 4.6(2) of the Waverley Local Environmental Plan 2012 (LEP 2012).

BASIX Certificate 1263955M_02 dated 14 April 2023 and NatHERs 0006998740 dated 13 April 2023. Clause 4.6 Variation Statement (Floor Space Ratio) prepared by Planning Ingenuity and dated 6 April 2023.

Planning framework

The site is zoned R2 Low Density Residential pursuant to LEP 2012. The proposal is permissible with consent. The objectives of the zone, to which regard must be had, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To maximise public transport patronage and encourage walking and cycling. • To ensure dwelling character, landscape character, neighbourhood character, streetscapes and amenity are maintained or enhanced over time. • To encourage the supply of housing that meets the needs of the population, particularly housing for older people and people with disability. • To promote development that incorporates planning and design measures that reduce the urban heat island effect. • To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping.
The site area is 433.8m2. The floor space ratio (FSR) development standard for the site is 0.5:1 (cl 4.4 of LEP 2012). Clause 4.4A of LEP 2012 permits exceptions to FSR, for lots with an area 100-550m2, the FSR is [[(550 - lot area) x 0.0011] + 0.5]:1, permitting a FSR on the site of 0.628:1. The proposed development's FSR is 0.756:1. The objectives of the FSR development standard, at cl 4.4(1) of LEP 2012, are: (a) to ensure sufficient floor space can be accommodated within the Bondi Junction Centre to meet foreseeable future needs, (b) to provide an appropriate correlation between maximum building heights and density controls, (c) to ensure that buildings are compatible with the bulk and scale of the desired future character of the locality, (d) to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and the locality.

Contravention of the FSR development standard

The Applicant provided a written request seeking to justify the contravention of the FSR development standard, prepared by Planning Ingenuity and dated 6 April 2023.
Clause 4.6(4) of LEP 2012 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) of LEP 2012 (Initial Action at [29]).

The applicant's written request to contravene the FSR development standard

The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the Applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows: … (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard.
The Applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the Applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the Applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ("Wehbe") and repeated in Initial Action at [17]-[21]: 1. the objectives of the development standard are achieved, notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).
The Applicant's written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved, notwithstanding the non-compliance with the numerical standard. The written request justifies the contravention of the FSR development standard on the following environmental grounds:

The form of the proposal is characteristic of the development within Glenayr Avenue;
The resulting building envelope has minimal amenity impacts on neighbouring properties; and
The contravention of the numerical FSR development standard does not result in non-compliances with the building envelope controls in the Waverley Development Control Plan.

The grounds relied on by the Applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).
I am satisfied, pursuant to cl 4.6(4)(a)(i), that the Applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The Applicant's written request defends the exceedance of the FSR development standard as a justified response to the bulk and scale of the existing residential development in the vicinity of the site. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).
I am satisfied, for the reasons set out by the Applicant in the written request, that the proposed development is consistent with the objectives of the FSR development standard.

Conclusion

I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 5 May 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

The orders of the Court are: 1. The Applicant is granted leave to amend the application, to rely on amended plans. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 3. The appeal is upheld. 4. Development Application No 144/2022 to demolish the existing buildings, construct a dual occupancy (attached), and strata subdivision into two lots, at 39 Glenayr Avenue, North Bondi, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 May 2023

(2018) 236 LGERA 256

(2007) 156 LGERA 446

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Cases Cited (7)