Loftex Pty Ltd v North Sydney Council

Planning controls 5The site is zoned Residential C under the North Sydney Local Environmental Plan 2001 (the 2001 LEP) and the proposed development is permissible with development consent. The area of Residential C zoned land in which the site is located extends between Oxley Street to the west, Albany Street to the south, Hume Lane to the east, and Chandos Street to the north. Land to the west of the site, on the opposite side of Oxley Street, through to St Leonards, and to the east from Hume Lane to Willoughby Road, is zoned Mixed Use. 6Clause 14 of the 2001 LEP provides: 14 Consistency of aims and objectives (1) When considering a development application, the consent authority must take into account the aims and objectives stated in this plan. (2) Consent must not be granted to the carrying out of any development that, in the opinion of the consent authority, is inconsistent with the specific aims of this plan, the objectives of the zone or the objectives of controls. 7The general aims of the 2001 LEP are provided in cl 2; specific aims in cl 3, including (a) "in relation to the character of North Sydney's neighbourhoods", (b) "in relation to residential development", and (d) "in relation to environmental quality". The objectives of the Residential C zone are to "encourage the provision of a range of residential accommodation, including dwelling houses, duplexes, attached dwellings and apartments, in proximity to transport and other services". Part 3 Div 2 of the 2001 LEP contains residential zones controls, including cl 16 residential zone objectives, cll 17 and 18 building height and building height plane controls, and cl 20 Landscaped area controls. 8The specific objectives of the residential zone controls are provided in cl 16: (a) a range of dwelling types, which includes: ... (iv) apartments, being a medium density form of housing set in a garden block, with underground parking and communal landscaped open space for the use of residents, and (b) amenity for residents of new and existing dwellings, and (c) buildings which are compatible with their immediate context, and (d) development that promotes the character of the neighbourhood, and (e) to avoid carriage development. 9Clause 20(2) provides that for a site which exceeds 900sqm, the landscaped area required is 60% of the site area. The term "landscaped area" is defined to mean: landscaped area of a site means the part of the site that is generally at existing ground level, that is not occupied at or above or below ground level by any building structure, swimming pool or hard-surfaced tennis court, or the like, that is or is proposed to be predominantly landscaped by way of plantings, gardens, lawns, shrubs or trees and that is available for use and enjoyment by the occupants of the building erected on the site, but does not include any area set aside for driveways and parking. 10The landscaped area for the proposed development is 40%, and the applicant has provided an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1). 11The North Sydney Development Control Plan 2002 (the 2002 DCP) applies. The site is within the St Leonards/Crows Nest Planning Area, and the 2002 DCP includes character statements for St Leonards Town Centre and Crows Nest Town Centre. 12At the time of the hearing, the draft North Sydney Local Environmental Plan 2013 (the Draft LEP) had been exhibited and forwarded to the Department of Planning and Infrastructure. The proposed zoning of the site under the Draft LEP was R4 High Density Residential, and the proposed development would be permissible with consent. 13The Draft LEP (in the form which became exhibit 2) contains cl 1.8A in the now standard form: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 14Based on the draft zoning map (exhibit F) the area of land proposed for R4 zoning, which includes the site, is the same area as is presently zoned Residential C under the 2001 LEP, as a section of land essentially surrounded to the east, south and west by land proposed to be zoned B4 Mixed Use. 15The Draft LEP does not contain numerical development standards, other than for height, which is met. The Draft North Sydney Development Control Plan 2012 (the Draft DCP) includes provisions relating to Residential Development. The landscape area controls vary according to the lot size for detached, semi detached and attached dwellings; for a residential flat building, the minimum landscaped area is 40% with a maximum un-built upon area of 15%. 16The landscaped area for the proposed development does not comply with the requirement of the 2001 LEP, but would comply with the Draft DCP provisions (as in exhibit 1). As discussed below, the parties disagreed as to the relevance of, and weight to be given to, the draft planning controls in consideration of the SEPP 1 objection, and in considering whether the proposed development can or should be approved on its merits. 17At the hearing the Council's representative advised that on 19 July 2013 the Council had received the most recent version of the Draft LEP from the Department of Infrastructure and Planning with certification from Parliamentary Counsel that the planning instrument may legally be made. Council officers had not at that time been able to examine the draft document to identify what changes may have been made by the Department, and it was not clear at that stage whether further exhibition would be required. Both parties undertook an examination of that draft (which is exhibit 2) during the course of the hearing and advised the Court that there were no provisions in that version of the Draft LEP that would affect the approach adopted by the parties to the likely operation of the Draft LEP to the proposed development. 18After the hearing the Council's representative informed the Court, by letter dated 29 July 2013, that advice received from the Department on that date was that the Draft LEP "is to be made shortly". By letter dated 1 August 2013, faxed to the Court and received after judgment had been listed for 4pm 2 August 2013, the Council's representative informed the Court that the North Sydney Local Environmental Plan 2013 "will be gazetted tomorrow 2 August 2013, and will come into force on 13 September 2013". 19On 2 August 2013 the North Sydney Local Environmental Plan 2013 (the 2013 LEP) was published on the NSW legislation website. Clause 1.1AA provides that the 2013 LEP commences 42 days after the day on which it is published, which will be 12 September 2013. The 2013 LEP repeals the 2001 LEP (cl 1.8). The savings provision in cl 1.8A is in the same form as in the Draft LEP. Part 4 of the 2013 contains the Principal Development Standards, relating to height of buildings (cl 4.3) and floor space ratio (cll 4.4 - 4.5). The making of the 2013 LEP has consequences for the further progress of this appeal, as discussed below.

Issues 20The plans have been amended during the course of discussions between the parties in a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act). At the commencement of the hearing leave was granted for the applicant to amend the application to rely on the amended plans. 21The amendments made to the plans are such that the Council no longer maintains its contentions relating to amenity issues including privacy, natural light, solar access, public access and safety and unit layout; parking; and fencing. It was common ground that the proposed building meets the requirements of the planning controls relating to height, setbacks, and fencing with the exception of the laneway fencing which is 1800mm high for security and privacy reasons. The amended plans responded to the recommendations of the North Sydney Council Urban Design Advisory Panel (exhibit 1, tab 3), and address some of the concerns raised by objectors, including by removing the large trees on the eastern boundary to address concerns as to overshadowing; provision of drainage along the boundary to 72 Atchison Street; and providing additional privacy measures including changing balustrades to solid masonry and adding an additional screen. 22The applicant has provided an arborist report addressing potential impacts to a significant Eucalypt tree in the rear yard of 93 Chandos Street Crows Nest (exhibit D). 23The remaining issues in dispute relate to the provision of landscaped area on the site. The Council's position is that if this development were on other land under other planning controls that permitted the proposed landscaped area, the Council would be satisfied that it would be appropriate to approve it. The Council contends first that the proposed development is inconsistent with the specific aims of the 2001 LEP (a)(i) and (d)(i), objectives (a)(iv) and (d) of the Residential Zone Controls, the objectives (a), (g) and (h) of the landscaped area controls in cl 20, and that consent therefore cannot be granted in accordance with cl 14(2). Secondly, the Council contends that the proposed development does not comply with the requirements of cl 20(2) of the 2001 LEP and would result in a development significantly deficient in the provision of landscaped area inconsistent with other residential flat building development in the immediate vicinity of the site, and that the SEPP 1 objection to compliance with those requirements is not well-founded. 24The Council presses that part of its contention relating to issues raised by objectors, that the proposed development does not provide an acceptable level of landscaped area, and notes that the objectors have also raised concerns as to an increase in local traffic in Atchison Lane and loss of street parking availability, and the concerns expressed by the occupant of the adjoining property as to privacy and overshadowing impacts.

Evidence 25The conciliation conference under s 34 of the Court Act commenced on site where evidence was given by six objectors, including the residents of adjoining and nearby properties in Atchison Street. The view included the site and the immediate locality, including 107-109 Chandos Street and 59 Atchison Street. The parties consented to the evidence on the view, and evidence given on site as part of the s 34 conciliation conference, forming part of the evidence in the proceedings, and agreed notes are in evidence (exhibit 6). The concerns raised by the objectors included overshadowing of the adjoining dwelling, in particular skylights, from the proposed large trees, overshadowing of properties on the other side of Atchison Street, drainage on the eastern boundary, parking, traffic along Atchison Lane, overlooking and privacy impacts. Written submissions made to the Council during its consideration of the application are included in exhibit 1, and those submissions raise concerns similar to those identified on site. 26After the conciliation conference was terminated the Council informed the objectors that the plans were to be amended and that its concerns had been addressed with the exception of the landscaped area, and informed them that they were entitled to inspect the plans in the form now proposed by the applicant, and to attend the hearing. The occupant of 72 Atchison Street, which adjoins the site immediately to the east, gave oral evidence at the hearing. That evidence was that the amendments to the masonry balconies and shutters met her concerns as to privacy; the removal of trees and proposed planting of Lillipilli shrubs to 3-4m met her concerns about overshadowing; and the proposal to create garden "rooms" in the landscaped area adjoining her side boundary met some of her concerns about noise from large groups gathering. She was still concerned as to parking and traffic in Atchison Lane, drainage as her house is located on the boundary, and about noise from groups of people gathering in the landscaped area adjoining her house. 27Expert planning evidence was provided by Ms Julie Bindon on behalf of the applicant, and by Mr Kim Rothe on behalf of the Council. Ms Bindon and Mr Rothe participated in a joint conference and provided a joint report (exhibit 4), and gave oral evidence. The planners agreed that generally the height, bulk and appearance of the development is acceptable; the site does not contain any significant natural landscape or topographic features; the apartments are a medium density form of housing with underground parking and communal landscaped open space; the development is generally in accordance with the objective of the Residential C zone under the 2001 LEP; the amended plans measure 40% of the "landscaped area" as defined in the Draft DCP; the amount of traffic is acceptable; and the level of privacy and overshadowing is acceptable and/or has been resolved through the s 34 conciliation conference.

SEPP 1 Objection 28It was common ground that the numerical requirement for 60% of landscaped area under cl 20(2) of the 2001 LEP is a development standard. Upholding the SEPP 1 objection is a pre condition which must be satisfied before the proposed development could be approved on its merits: Wehbe v Pittwater Council (2007) 156 LGERA 446. 29The Council's position is that the SEPP 1 objection to compliance with the landscaped area development standard should not be upheld. In the Council's submissions, the SEPP 1 objection does not identify why compliance with the development standard is unreasonable or unnecessary or how compliance would hinder the attainment of the objects in s 5(a)(i) and (ii) of the Act, but rather is based on the acceptability of the proposed development. The Council submits that compliance with the area requirement will be consistent with the objectives of the development standard identified in cl 20(1) of the 2001 LEP. The Council submits that the fact that the proposed development would meet the requirements of the Draft DCP is irrelevant, because that would not fall within any of the purposes for which a DCP can be prepared as provided in s 74C(1) of the Act. The fact that the Draft LEP does not provide a numerical landscape area control is also not relevant, because if the making of the Draft LEP is not imminent and certain, it should be given little weight; and if it is imminent and certain, it should be assumed that it will be made in the form in which it now is, which includes cl 1.8A, and accordingly should be disregarded: Alamdo Holdings Pty Ltd v The Hills Shire Council [2012] NSWLEC 1302. 30The applicant's position is that the SEPP 1 objection is well founded and that granting of consent would be consistent with the aims of SEPP 1, on the basis that strict compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, because the objectives of the standard are met notwithstanding the numerical non-compliance, and would hinder attainment of the objects in s 5(a)(i) and (ii) of the Act, as it would not take full advantage of the site's opportunities and ability to deliver a quality residential flat building providing economic and social benefits for St Leonards, and would unduly restrict the economic viability of the project by reducing yield. Variation from the development standard would be consistent with the Draft Metropolitan Strategy, a matter of State or regional significance, and there is no public benefit in not allowing variation because the proposed development is compliant with existing controls as to height and setback, the development as a whole is acceptable on the merits, the proposed development complies with all the relevant controls in the Draft LEP and Draft DCP, and the development is consistent with the objectives of the zone and the desired future character of the planning area and locality. The applicant relies on the futility of requiring it to lodge a new development application under the new planning controls if the development is otherwise acceptable, which would involve delay in delivering housing stock of the type identified in the planning controls. The applicant submits that the Draft LEP is relevant in the assessment of the public benefit required under cl 8 of SEPP 1, as a publicly exhibited statement of the Council's intentions for the site and the area, and that the approach adopted in Alamdo to cl 1.8A of the Draft LEP is not applicable. The applicant submits that the Draft DCP, having been exhibited as part of a suite of proposed controls, is relevant in assessment of the public interest under s 79C(1)(e) of the Act. 31In Wehbe v Pittwater Council (2007) 156 LGERA 446, Preston CJ held (at [37]-[40]), that the Court must be satisfied of three matters before it can uphold a SEPP 1 objection and grant development consent. Those matters are, first, that the Court is satisfied that the objection is well founded (cl 7 of SEPP 1), which places the onus on the applicant making the objection; secondly, the Court must be of the opinion that granting consent to the development is consistent with the aims of SEPP 1 as set out in cl 3 (cl 7 SEPP 1); and thirdly, the Court must be satisfied that a consideration of the matters in cl 8(a) and (b) of SEPP 1 justifies the upholding of the objection. 32The SEPP 1 objection (exhibit B) took the not uncommon approach of arguing that strict compliance with the development standard is unreasonable or unnecessary because the proposed development will achieve the objectives of the standard notwithstanding the numerical non-compliance. That is the first of the five ways identified in Wehbe in which compliance a development standard might be shown to be unreasonable or unnecessary. As held by Preston CJ, the rationale to this approach is that development standards are not ends in themselves but means of achieving ends, and those ends are environmental or planning objectives: 43. ...Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 33The objectives of the landscaped area control are provided in cl 20(1): (1) Landscaped area objectives The specific objectives of the landscaped area controls are to: (a) promote the character of the neighbourhood, and (b) provide useable private open space for the enjoyment of residents, and (c) provide a landscaped buffer between adjoining properties, and (d) maximise retention and absorption of surface drainage water on site, and (e) minimise obstruction to the underground flow of water, and (f) promote substantial landscaping, including trees which will grow to a minimum height of 15 metres, and (g) control site density, and (h) minimise site disturbance. 34The SEPP 1 objection addressed each of the objectives in cl 20(1). I am satisfied, based on the arguments provided in the SEPP 1 objection, which were not disputed, that the proposed development achieves objectives (b), (c), (d) (e) and (f). The eastern landscaped area provides private open space suitable for passive recreational use with good solar access; the minimum setback to the eastern boundary is 6m, and the landscaped area provides an acceptable buffer between it and the adjoining property both currently and for any likely future redevelopment of the adjoining land if redeveloped in the future as part of an amalgamated site; the majority of the landscaping is soft and permeable landscaping providing a significant area for surface drainage and absorption on the site; the geotechnical evidence indicates that groundwater occurs well below the excavated level so that the development is not expected to result in any obstruction to underground flow of water; and the landscape plans provide for a variety of substantial trees including a series of Illawarra Flame Trees along Atchison Street and the corner of Oxley Street and Atchison Lane. 35The Council's contentions, and the evidence, focussed on consistency of the development with objectives (a), (g) and (h). 36Considering first objective (a), the planners agreed that the "character of the neighbourhood" is described in the 2002 DCP St Leonards/Crows Nest Character Statement, including the character statement and desired future outcome for the St Leonards Town Centre. The Planning Area character statement notes housing choice in the mix of dwelling sizes and in the range of affordability; public transport as the main form of access to the St Leonards Town Centre; natural light reaching buildings, public places and streets, and additional open space provided for increased residential population; quality built form, including scaling down of buildings from the Forum development landmark towards Willoughby Road, Hume Street and Chandos Street to fit in with lower scale development and to reduce adverse effects on those lower scale areas, and high rise development generally contained by Pacific Highway to the west, Oxley Street to the east and south and Chandos Street to the north; tree planting in private and public spaces and small landscaped areas to provide relief from the built form, and rear lanes used for vehicle access. The St Leonards Town Centre character statement for the desired future outcome for St Leonards Town Centre includes a diversity of development, and makes specific provision for development in the Residential 3 zone, requiring that development complement the physical form of development in the adjoining mixed use areas, generally 5 storey buildings with flat roofs, setback 3m from street frontage and ground level, setback at least 3m to laneway frontage, landscaped areas accessible to all residents and not fenced off into separate courtyards, and laneway fence 900-1200mm high, and vehicle access from laneways only with parking underground. 37Mr Rothe accepted that the site is located in a pocket of residential zoned land with a variety of dwellings from residential flat buildings through to single dwellings, and he accepted that the locality is in transition from low density forms to higher density. The character statement is silent on the quantity of landscaping required, which is addressed in the 2001 LEP, and the numerical requirement applying to all land in the Residential C zone depends on lot size rather than the type of development such as residential flat buildings. In his opinion, consideration of the character of the neighbourhood should be guided by pre-existing development, which includes the two residential flat building developments that comply with the numerical requirement, 107-109 Chandos Street and 59 Atchison Street. 38I agree with Ms Bindon that a focus on two other developments in the locality that are compliant is too limited an approach to objective (a), and that it is relevant that the site is located in an area in transition. I agree with Ms Bindon that the proposed development is consistent with the character statement in the DCP, and in particular with its references to landscaping being "highly urbanised but softened by introduced water and greenery", with tree planting in private and public spaces and small landscaped areas to provide relief from the built form, and accessibility of landscaped areas for all residents. In particular, the location of the proposed development on the intersection of three street frontages, and the retention of existing large street trees, the proposed planting of a number of large trees of similar scale to the building along Atchison Street and Oxley Street, and screen planting along the eastern boundary, assist in promoting the character of the neighbourhood consistent with the character statement. While some of the landscaped areas are private, provided in courtyards of a number of ground floor apartments, the main space along the eastern side of the building is communal and accessible to all residents. I am satisfied that the proposed development meets objective (a). 39Objective (g) requires consideration of site density. The building meets the 5 storey height limit under the 2001 LEP. There is no applicable FSR control. The SEPP 1 objection starts with the proposition that the 2001 LEP and 2002 DCP controls together establish a building envelope for the site, and the landscaped area, height limit and setback controls are the key controls that help establish a desirable envelope for any given site. The SEPP 1 objection argues that the proposed building complies with the minimum setback requirements in the 2002 DCP and with the maximum height standard in the 2001 LEP, and the building is of an appropriate density for the site and locality. Mr Rothe's evidence was that development that provides a compliant level of landscaped area would have a reduced building footprint and accordingly alter the potential density of the development on the site. He accepted that non-compliance with the landscaped area would not per se mean that a development could not meet the objective to "control site density": the SEPP 1 objection would have to be considered, and it would have to be asked whether the density was acceptable or not. Mr Rothe agreed that the bulk and height of the building are appropriate. 40I agree with the Council that factors such as a likely reduced yield on the site if the building were designed so as to meet the landscaped area and still comply with height and setback controls would not ordinarily be relevant in considering whether the objective has been complied with. However, I accept that factors such as consistency with overall residential density in the St Leonards Town Centre, of which the site is part; the sustainability of the density in terms of high level of access to jobs and public transport; satisfaction of key principles of the Residential Flat Building Design Code under State Environmental Planning Policy 65 - Design Quality of Residential Flat Development; and the absence of environmental impacts that might arise from density such as additional building bulk, height or scale as well as extra traffic or population, and potential impacts on visual amenity, views, solar access and traffic generation, are relevant in considering whether the objective has been achieved. Having regard to those factors, I agree with the applicant that the objective of controlling density is met. 41Objective (h) is to "minimise site disturbance". The SEPP 1 objection notes that just over 40% (40.3% or 461.5 sqm) of the site will remain as landscaped area and on which no basement structures will be placed. That portion of the site will not be significantly disturbed, particularly when compared with the majority of the development in the mixed use areas of the St Leonards Town Centre. The definition of "landscaped area" does not include any area occupied by building above ground (such as balcony overhangs) or below ground (such as basement parking areas that extend beyond the above ground walls). In this development, the basement parking areas extend beyond the above ground walls of the building in an easterly direction and consequently reduce the landscaped area by approximately 7-8%, although from the street or apartments above this area appears to be landscaped. The underground lateral extension was chosen because it resulted in a more rational and efficient car park that could be provided over two levels; to pull back the car park and increase the percentage of landscaped area would have meant extending the car park downwards into another basement level, which would have resulted in more excavation and off-site disposal of excavated material and would have added to the cost of the development (and reduced housing affordability). The SEPP 1 objection concludes that the level of site disturbance is therefore acceptable notwithstanding the variation to the landscaped area standard and this objective of the standard is adequately satisfied. 42Mr Rothe's evidence was that development that provides a compliant level of landscaped area would result in less wholesale disturbance of the site. Ms Bindon agreed generally, and commented that while less of the site could be disturbed in a lateral direction, it might be necessary to go deeper to get parking, and that factors such as unit mix, numbers, and parking provision would be relevant. Ms Bindon was of the opinion that the amount of excavation is acceptable and that there is still 40% of the site undisturbed, with good deep soil planting and good absorption. 43The planners agreed that the proposed development meets the setback requirements in the 2002 DCP, and that the location of the site with three street frontages provides an opportunity for planting of larger trees. Based on the view, I accept the evidence of Ms Bindon that the location of the development on the intersection with the three street frontages provides good separation from other development, that there is good separation and landscaping at the eastern boundary, and that the proposed development provides a good level of amenity with little impact on its neighbours. However, it is not sufficient that the proposed development is a good one, or that the level of site disturbance might be regarded as acceptable. A finding that a proposed development is acceptable on its merits does not address the task of considering whether compliance is unreasonable or unnecessary because the objective of the development standard is met: Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46 at [28]; and it is not sufficient merely to point to an absence of environmental harm: Wehbe at [75]. The objective (h) is to "minimise" site disturbance, and on the evidence before me I am satisfied that more of the site would be disturbed for construction of the building and parking for this development than would be the case with a compliant development. 44The SEPP 1 objection further argues that strict compliance would tend to hinder the attainment of the objects in s 5(a)(i) and (ii) of the Act, which are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, 45The SEPP 1 objection argues that compliance would mean that the development would not take full advantage of the site's opportunities and its ability to deliver a quality residential flat building which would provide economic and social benefits for St Leonards including the provision of good quality housing near jobs, services and public transport. In addressing object (ii), the SEPP 1 objection argues that the orderly and economic use of the site would be realised with approval of this development whereas compliance would unduly restrict the economic viability of the project by reducing significantly the density or yield on the land even though that density is demonstrably acceptable in its context; and that the achievement of the orderly development of the land and the wider objectives of the Residential zones as expressed in cl 16 of the 2001 LEP would also therefore be thwarted. 46I agree with the applicant that the proposed development provides the type of dwelling identified in objective (a)(iv) in cl 16, and for the reasons above I am satisfied that it would also meet objectives (b), (c) and (d). The difficulty with accepting the applicant's position based on yield, however, is that a compliant development, which would require a reduction in the number or size or possibly alteration in the mix of units while still meeting the height and setback controls, would also meet the objectives in cl 16, and attain the objects in s 5(a)(i) and (ii) of the Act. There is no evidence before me to suggest that a reduced development that complied with the landscaped area requirement would not be economically viable. I am not persuaded that a potential reduced density or yield for a residential flat building on the site would of itself hinder the attainment of the objects in s 5(a)(i) and (ii). 47The SEPP 1 objection raises, as aspects of the public benefit in maintaining the development standard, the following factors:

• the removal of the development standard in the forthcoming Draft LEP;
• the inclusion of a similar replacement control in the Draft DCP;
• the fact that the applicant could lodge a new development application as soon as the Draft LEP is made and achieve full compliance with the new controls, which simply incurs unnecessary delays and cost to the applicant for no sound environmental planning reason. The resubmitted development application would comply with all the new relevant planning controls, without changing the design or affecting the uncontested merits of the proposal, and it is unreasonable and unnecessary to impose further process for no material public benefit or change to the environmental outcome. 48The 2013 LEP has been published, and cl 1.1AA provides a defined and limited period for the continued application of the 2001 LEP controls. That may affect consideration of whether the granting of consent would be consistent with the aim of SEPP 1, being to provide flexibility in the application of planning controls in circumstances where strict compliance would be unreasonable or unnecessary (where the proposed development achieves all but one of the eight objectives of the development standard) or tend to hinder the attainment of the objects in s 5(a)(i) and (ii) of the Act (where additional delays and costs for both applicant and Council would be incurred for an otherwise acceptable development). I note that in Wehbe (at [52]), Preston CJ held that the requirement that the consent authority form the opinion that granting consent is consistent with the aims of SEPP 1 as set out in cl 3 "makes it relevant 'to consider whether consent to the particular development application encourages what may be summarised as considered and planned development' or conversely may hinder a strategic approach to planning and development". That is a matter on which, in fairness, the parties should have the opportunity to make submissions before a determination is made as to whether the SEPP 1 objection should be upheld.

Merits 49Upholding the SEPP 1 objection is a precondition which must be satisfied before the proposed development can be approved. If the SEPP 1 objection is upheld, cl 14 of the 2001 LEP requires consideration of the aims and objectives stated in the 2001 LEP, and precludes consent being granted carrying out of any development that, in the opinion of the consent authority, is inconsistent with the specific aims of the 2001 LEP, the objectives of the Residential C zone, or the objectives of controls. 50I note that the Council is now satisfied with the design of the proposed development, which has responded to the recommendations of the North Sydney Council Urban Design Advisory Panel, and to issues raised by the objectors. It was common ground that the proposed development, including the landscaped area, would meet the planning controls proposed in the Draft LEP and Draft DCP, in the form before the Court in exhibits 1 and 2. The parties may require an opportunity to consider whether that is still so under the 2013 LEP. 51Clause 14(2) requires that consent cannot be granted for the carrying out of development that is, in the opinion of the consent authority, inconsistent with the specific aims of the 2001 LEP, the objectives of the Residential C zone or the objectives of controls. Development may be consistent with the relevant aims and objectives if it is not antipathetic to them, and it is not necessary to show that the development promotes or is ancillary to those objectives: Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21. If it is of assistance to the parties, on the evidence now before me, and without having the benefit of any further submissions based on the making of the 2013 LEP, I am not presently of the view that the development is inconsistent with any of the relevant aims or objectives, for the following reasons. 52Considering first the specific aims of the 2001 LEP in cl 3, I have earlier concluded that the proposed development does "promote the character of the neighbourhood", and it is accordingly consistent with the first part of the specific aim in cl 3(a)(i), which is to "promote the character of the neighbourhoods and development which is compatible with neighbouring development in terms of bulk, scale and appearance". The planners were in agreement that the height bulk and appearance are acceptable. Mr Rothe's evidence was that the scale is unacceptable. I agree with Ms Bindon that the location of the site on the intersection, with the existing and proposed plantings on the three street frontages which will provide for tall and substantial landscaping, and which will soften the building and screen it in places, means that the scale of the development in its context, and in considering the character statements in the 2002 DCP, is not incompatible with the neighbouring development. On that basis the proposed development is not inconsistent with the specific aim in cl 3(a)(i). Clause 3(d)(i) provides the aim of maintaining and protecting "natural landscape, topographic features and natural ground surfaces". Mr Rothe's evidence was that the proposal does not maintain or protect the natural ground surfaces. I agree with Ms Bindon that the natural ground surfaces on the site would have been altered to some extent by the existing development, which is four single dwellings and associated structures, and that based on the plans those surfaces would not materially change as a result of the proposed development. I accept her evidence that the excavation required for the basement is an expected consequence of redevelopment of higher density housing consistent with the residential C zoning. The proposed development is not inconsistent with cl 3(d)(i). I accept the agreed evidence of the planners that the development is generally in accordance with the objective of the Residential C zone, and it is accordingly not inconsistent with that objective. I have earlier stated my reasons for finding that the proposed development achieves the objectives for the residential zone controls in cl 16. I have also expressed my reasons for finding that the proposed development achieves the objectives of the landscaped area control in cl 20(1), other than objective (h) being "minimise site disturbance". The test under cl 14(2) is not whether the proposed development achieves all those objectives, but rather whether it is inconsistent with those objectives. In my view it is not antipathetic to the objective in cl 20(2)(h), when the height and scale of the proposed landscaping is considered in the context of the location of the development on three street frontages, two of which have additional open space and substantial trees. 53The making of the 2013 LEP and the timing of its commencement are in my view potentially relevant to the consideration required by cl 14(2), and the other relevant factors under s 79C of the Act, in particular s 79C(1)(a)(ii). 54I note that the previous decisions that have considered cl 1.8A in the form proposed in the Draft LEP and now in the 2013 LEP, namely Alamdo, Moscaritolo v The Hills Shire Council [2013] NSWLEC 1014, Signature Gardens Retirement Resort Pty Ltd v Cessnock City Council [2013] NSWLEC 1070, Greenwood v Warringah Council [2013] NSWLEC 1119, Wang v Canterbury City Council [2013] NSWLEC 1098, and Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 1127, involved circumstances where the new planning instrument had come into force, and at least in the case of Wang, where that new planning instrument would prohibit what was permissible under the planning controls current at the date of application. To apply the reasoning in Alamdo and disregard a draft LEP that could properly be regarded as imminent and certain would, as accepted by the Council in its submissions at the hearing, leave no work for s 79C(1)(a)(ii) of the Act to do where the "proposed instrument" is a draft local environmental plan that adopts the now standard version of the savings and transitional provision in cl 1.8A. I would be reluctant to draw such a conclusion. In any event, how s 79C(1)(a)(ii) applies in circumstances such as these where the new planning instrument is made but has not yet commenced is a matter not canvassed at the hearing, and the parties should have the opportunity to address that question. Similarly, the timing of the commencement of the 2013 LEP may have consequences for the applicant's submission that at the least those documents which have been the subject of public exhibition and consultation through the process undertaken under Part 3 of the Act should be seen, as a consequence of the Council's resolutions to proceed on that basis, as an expression of the Council's opinion as to the desired future development of its area and accordingly relevant under s 79C(1)(e) of the Act.

Conclusion 55The parties should have the opportunity to consider the provisions of the 2013 LEP, and to consider whether the evidence and submissions based on the Draft LEP and Draft DCP in exhibits 1 and 2 need to be revisited. I have identified a number of issues (at [48], [50], [53] and [54]) on which I consider the parties should have the opportunity to make submissions if they wish. I will make directions in consultation with the parties for the making of any further submissions and any other matters required for finalisation of this appeal. Linda Pearson 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: 05 August 2013