Loftex Pty Ltd v North Sydney Municipal Council

Applicant's submissions 7The applicant read an affidavit affirmed by its solicitor, Ms Julia Bridge, on 9 August 2013, in which she states that having read the 2013 LEP, and compared the relevant provisions which apply to the proposed development in the Draft North Sydney Local Environmental Plan 2012 (the Draft LEP) in exhibit 2, the provisions relating to the R4 High Density Residential zone, height of buildings (cl 4.3) and Floor Space Ratio (cl 4.3), are in identical terms in the Draft LEP and the 2013 LEP. Ms Bridge annexes relevant pages extracted from the Council's webpage "LEP 2013 Draft DCP 2012 Update - August 2013" which state that the Council resolved on 8 October 2012 to adopt Draft Development Control Plan 2012 (the Draft DCP), which was publicly exhibited between 25 October 2012 and 21 November 2012, and that it "is proposed to put a post exhibition report to Council on 19 August or 2 September 2013, which will enable Council to adopt the DCP and have it come into force at the same time as NSLEP 2013". 8The applicant submitted, based on this evidence, that the proposed development, including the landscaped area, would still meet the planning controls in what were, at the time of the hearing, the proposed Draft LEP and Draft DCP, and now in the form of the 2013 LEP and the proposed development control plan referred to above. The Council agreed with that position. 9The applicant submits that there is no doubt the new planning controls are imminent and certain. The fact that the 2013 LEP has been made reinforces the position that strict compliance with the controls in the 2001 LEP is unreasonable and unnecessary, and there is no public benefit in requiring it. The applicant relies on the decision of Tuor C in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC1127, and submits that in these proceedings the experts also accepted that the likely future character of the area was a factor to be taken into account in whether the SEPP 1 objection should be upheld. The applicant submits that granting consent would encourage considered and planned development. The status of the 2013 LEP is that it is made, having been published on 2 August 2013; it commences in accordance with cl 1.1AA on 13 September 2013. It is still a "proposed instrument" for the purposes of s 79C(1)(a)(ii) of the Act because it has not yet come into effect. Because it has not yet come into effect, cl 1.8A, which provides that a development application made before the commencement of the 2013 LEP and not finally determined before that commencement, must be determined as if the 2013 LEP had not commenced, and the approach in Alamdo Holdings Pty Ltd v The Hills Shire Council [2012] NSWLEC 1302, does not apply. The circumstances of this case can be distinguished from Alamdo and all the other decisions that have applied that approach, because the new LEP has not yet commenced, and the temporal distinction is important: Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291. Clause 1.8A has no work to do, and the new planning controls must be considered. In determining the weight to be given to them, Terrace Towers Holdngs Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 requires that greater weight be given to them after gazettal. The present circumstance is a stronger position than that where a draft planning instrument has not been made, or where there is a savings provision requiring the draft to be treated as if it had been exhibited. The applicant submits that significant weight is to be given to the Draft DCP because of the timing of its coming into force: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. 10In reply, the applicant submits that the making of the 2013 LEP is relevant to the determination of each of the three matters as to which the Court must be satisfied before it can uphold the SEPP 1 objection, namely that it is well founded, the granting of consent is consistent with the aims of SEPP 1 as set out in cl 3, and that a consideration of the matters in cl 8 of SEPP 1 justifies upholding the SEPP 1 objection. The applicant submits that the 2013 LEP is a relevant consideration under s 79C(1)(a)(ii) of the Act on the basis that it is not an "environmental planning instrument" as defined in s 4 of the Act as it is not "in force", and is a proposed instrument; and that the reasoning in Alamdo would not apply because cl 1.8A is not operative and has no work to do. In the alternative the applicant submits that Alamdo should not be followed, first, as a matter of construction; secondly, adopting a purposive approach, the removal of the words "had been exhibited" from cl 1.8A is explicable otherwise than as an indication that the 2013 LEP be treated as if it did not exist, in effect; thirdly because the Court should avoid an interpretation of an environmental planning instrument that would lead to an absurd result if the 2013 LEP was a mandatory relevant consideration under s 79C(1)(a)(ii) as a "proposed instrument" but not under s 79C(1)(a)(i) after commencement.

Council's submissions 11The Council submits that neither the 2013 LEP nor the Draft DCP can be considered. The 2013 LEP has been made, and it is therefore no longer a "proposed" instrument, applying Alamdo at [7]. Clause 1.8A of the 2013 LEP is in the same terms as those considered in Alamdo, and accordingly the 2013 LEP is not a relevant consideration. The Draft DCP is dependent on the provisions of the 2013 LEP, applying Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning (2000) 107 LGERA 363, and regard must be had to the purposes of a development control plan provided in Div 6 of Part 3 of the Act. 12The Council submits that the passage on the Council webpage "LEP 2013 Draft DCP 2012 Update - August 2013", which states that as the 2013 LEP has not yet come into force "it is to be treated as a draft local environmental plan up until the 12 September 2013 in accordance with the provisions of [the Act]", is not correct. The applicable controls for determination of this application are those in the 2001 LEP. The Council submits that the timing of the making and commencement of the 2013 LEP does not affect consideration of whether the granting of consent would be consistent with the aim of SEPP 1.

SEPP 1 Objection 13In order for the Court to have power to grant development consent for the proposed development, the SEPP 1 objection to compliance with cl 20(2) of the 2001 LEP must be upheld. There are three matters of which the Court must be satisfied before it can uphold the SEPP 1 objection: first that the objection is well founded; secondly, that the granting of consent to the development is consistent with the aims of SEPP 1 as set out in cl 3, which is cumulative on the first matter; and thirdly, that a consideration of the matters in cl 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Wehbe v Pittwater Council [2007] NSWLEC 827 at [37]-[41]. 14As discussed in the earlier judgment, the applicant's objection that compliance with the landscaped area development standard is unreasonable or unnecessary in the circumstances of the case in its SEPP 1 objection (exhibit B) was based on the argument that the objectives of the development standard are achieved notwithstanding non-compliance with the standard. As discussed in Wehbe at [42], this is the most commonly invoked way of establishing that a SEPP 1 objection may be well founded and consistent with the aims set out in cl 3 of SEPP 1. For the reasons given in the earlier judgment at [34]-[43], while I am satisfied that objectives (a), (b), (c), (d), (e), (f) and (g) of the landscaped area standard in cl 20(1) of the 2001 LEP are achieved, I am not satisfied that objective (h), being to "minimise site disturbance", is achieved. 15The SEPP 1 objection states (at 2.2) that "on balance compliance with the objectives of the standard is achieved notwithstanding non-compliance with the standard itself", and that accordingly the objection has demonstrated that one of the ways in which an objection to a development standard might be shown to be unreasonable or unnecessary has been met and therefore the objection is well founded. In my view, the provision of eight "specific objectives" of the landscaped area controls in the 2001 LEP, rather than leaving the underlying objective of the standard to be discerned from the planning instrument as a whole, requires attention to each of those objectives, and the achievement of them all in considering whether the environmental or planning objectives, as described by Preston CJ in Wehbe at [43], are achieved. 16However, I agree with the applicant that the change in circumstance that has occurred as a consequence of the making of the 2013 LEP is relevant in considering whether the objection is well founded. While Preston CJ in Wehbe outlined five ways in which an objection under SEPP 1 may be well founded and consistent with the aims of SEPP 1, it is not appropriate to read this analysis as an exhaustive code to be strictly applied whenever SEPP 1 is relied upon: Liberty Investments Pty Ltd v Blacktown City Council [2009] NSWLEC 7 at [28] per Sheahan J. Ultimately the onus is on the applicant to establish that the objection is well founded. In that regard, the SEPP 1 objection relies on the fact that the proposed development complies with the height standard and setback controls, and achieves the objectives of the zone and the desired future character of the planning area and the locality, under the 2001 LEP and the 2002 DCP, and that there is no planning benefit in strictly maintaining compliance with the landscaped area development standard in circumstances where the proposed development complies with the controls in the 2013 LEP and the Draft DCP 2012 (exhibit B, p 19). 17I agree with the applicant that the making of the 2013 LEP, and the certainty as to the date of its commencement, supports that basis of objection to compliance with the development standard. I do not agree with the Council that cl 1.8A of the 2013 LEP requires that it be entirely disregarded. Clause 1.8A provides: 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. 18The circumstances of this case are distinguishable from those applicable in Alamdo and the subsequent decisions that have adopted its reasoning. In all of those decisions, the new local environmental plan which incorporated cl 1.8A in that form had commenced at the time of the Court's decision. The 2013 LEP has not commenced, and in my view cl 1.8A, in terms, has no work to do until the 2013 LEP commences on 13 September 2013. That conclusion makes it unnecessary to consider the alternative submission put by the applicant, that Alamdo should not be followed. 19The applicant submits that the situation is analogous to that identified by Preston CJ in Wehbe at [47], where his Honour referred to a situation where a development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard. In the present application, the evidence was that the Council has approved other developments in the locality that do comply with the landscaped area standard. While the circumstances are not directly analogous, I accept the applicant's submission that the making of the 2013 LEP represents a significant change. In the unusual circumstances of this case, where the 2013 LEP has been made but has not yet commenced, establishing a finite period for continued application of the current controls, I am satisfied that the SEPP 1 objection is well founded. 20The second requirement is that the Court is satisfied that the granting of consent to the development is consistent with the aims of SEPP 1 as set out in cl 3. Those aims are to provide "flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act." 21In circumstances where the present controls have a limited and finite period of operation; the proposed development complies with the height standard and setback controls and achieves the objectives of the zone and the desired future character of the planning area and the locality, under the present controls; and complies with the new controls which will commence on 13 September 2013, I am satisfied that compliance with the standard is unreasonable or unnecessary. The situation is analogous to that considered in Legal & General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192, where Cripps CJ held (at p 203): It would seem to me that if a council knew a new scheme was about to be made having the effect of significantly varying standards presently in existence under a statutory scheme, it could have regard to that circumstance to determine whether compliance with earlier standards was unreasonable or unnecessary in the circumstances of the case. 22Strict compliance with the standard, and the consequent refusal of the present application, would require the applicant to lodge a new development application as soon as the 2013 LEP commences, which would incur delay and cost to both the applicant and the Council in assessing an application that it is agreed would comply with the controls, and is acceptable on its merits. I agree with the applicant that the resultant delay and cost would be incurred for no sound environmental reason. I am satisfied that the granting of consent to the present application would promote "considered and planned development", as referred to by Preston CJ in Wehbe at [52], and that strict compliance with the development standard would hinder the attainment of the object in s 5(a)(ii) of the Act, being "the promotion and co-ordination of the orderly and economic use and development of land". 23The third requirement is that the Court be satisfied that a consideration of the matters in cl 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection. Although the Court has the power to uphold the SEPP 1 objection without the concurrence of the Director-General by reason of s 39(6) of the Court Act, those matters are still relevant: Wehbe at [41]. There are no identified matters of significance for State or regional environmental planning. I agree with the applicant that there is no public benefit in maintaining the planning controls adopted by the 2001 LEP in circumstances where there is certainty as to the imminent replacement of those controls, and the proposed development is consistent with the new planning controls. 24For these reasons, I am satisfied that it is appropriate to uphold the SEPP 1 objection.

Assessment of the merits 25Clause 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. 26The Council contends that cl 14(2) requires that consent be refused because 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, and objectives (a), (g) and (h) of the landscaped area controls in cl 20 of the 2001 LEP. In the earlier judgement I set out my reasons, at paragraph [46], for finding that the proposed development meets the objectives of the Residential zone controls in cl 16 of the 2001 LEP. At paragraph [52] I considered the specific aims in cl 3 of the LEP, finding that the proposed development is not inconsistent with the objectives in cl 3(a)(i) and (d)(i). At paragraphs [34]-[43] I considered the objectives of the landscaped area control as provided in cl 20(1), concluding that the proposed development meets all but one of those objectives. At paragraph [52] I concluded that the proposed development is not inconsistent with the objectives in cl 20(1). Based on those findings, I am satisfied that cl 14(2) of the 2001 LEP would not preclude consent being granted to the proposed development. 27In considering whether the proposed development should be approved, I note that the Council no longer maintains its contentions relating to amenity issues including privacy, natural light, solar access, public safety and unit layout; parking; and fencing. As noted at [21] in the earlier judgment, 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. 28The Council's remaining contention is that the non compliance with the landscaped area required under cl 20(2) of the 2001 LEP would result in a development significantly deficient in the provision of landscaped area inconsistent with other residential flat development in the immediate vicinity of the site. 29The site is located between the multistorey commercial and mixed use buildings to the west towards St Leonards Town Centre and predominantly one and two storey residential dwellings with isolated residential flat buildings to the east. The locality is in transition from low to higher density forms of development. The two residential flat building developments relied upon by the Council, 107-109 Chandos Street and 59 Atchison Street, are close to the subject site, but not directly adjacent. Both are smaller sites (764 sqm and 748 sqm respectively) than the subject site, and consequently were required to meet a different landscaped area under cl 20(2) of the 2001 LEP, namely 56%. Based on the view, it would not in my opinion be immediately apparent by reference to those two developments that the site falls short of a different landscaped area requirement. I agree with Ms Bindon that the three side boundaries adjoining public roads, being Atchison Street, Oxley Street and Atchison Lane, the landscaped road reserve frontages, and the partially landscaped street verges, provide a buffer between the site and other residential properties in the immediate vicinity. I accept the evidence of Ms Bindon that the proposed landscaped area on the eastern boundary adjoining 72 Atchison Street provides both passive recreation for residents of the proposed development while screening the building from and providing privacy to the dwelling at 72 Atchison Street, and also enables a mirror response if and when that property is redeveloped in the future for higher density residential uses as part of an amalgamated site. When the proposed development is considered in its context, I agree with Ms Bindon that a complying development would not necessarily be significantly different in its character. I am not persuaded that the proposed development is, because of the shortfall in landscaped area, inconsistent with other residential flat development in the immediate vicinity of the site. 30The 2013 LEP does not include a landscaped area standard, and the Draft DCP provides for a minimum landscaped area of 40 percent for all lot sizes in relation to residential flat development. The proposed development would accordingly be consistent with any compliant residential flat development approved under the new controls, which would include any redevelopment of the land adjoining the site and to the east. The 2013 LEP and Draft DCP are, in my view, relevant factors for consideration in determining whether consent should be granted, for two reasons. First, the 2013 LEP has not yet commenced, and on my reading of its terms, cl 1.8A has no work to do until it does. Secondly, whether or not the 2013 LEP is a relevant consideration under s 79C(1)(a)(ii) as a "proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority...", in my view the 2013 LEP and the Draft DCP are relevant considerations under s 79C(1)(e) of the Act, "the public interest". 31I agree with the applicant that the 2013 LEP would not meet the definition of "environmental planning instrument" in s 4 of the Act, which provides: environmental planning instrument means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force. 32That definition would appear to preclude the 2013 LEP, which is not "in force", being a required relevant consideration under s 79C(1)(a)(i) of the Act. It would support a construction of s 79C(1)(a)(ii) that a "proposed instrument" is an instrument that has not yet commenced, but has reached the stage of preparation under Part 3 of the Act identified by reason of it having been "the subject of public consultation under this Act and that has been notified to the consent authority". It is not necessary, in my view, to decide whether it would be correct to describe an environmental planning instrument such as the 2013 LEP, having been made but not yet commenced, as a "proposed instrument" for the purposes of s 79C(1)(a)(ii) of the Act. Whether or not that is so, I agree with the applicant that the 2013 LEP and the Draft DCP can be seen as an expression of the Council's opinion as to the future development of its area. The process of developing the 2013 LEP has, as noted by the Council's representative, been a protracted one, involving more than one public exhibition. As held in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [90], the "public interest" acknowledged as a relevant consideration in s 79C(1)(e) of the Act extends "to any well-founded detailed plan adopted by a council for the site of a proposed development". The same reasoning should apply to a local environmental plan made, but not yet commenced. While it is correct, as the Council submitted, that the Draft DCP is dependent on the 2013 LEP, and must comply with the provisions in Div 6 of Part 3 of the Act, a development control plan that will come into force when the 2013 LEP does can in my view equally be regarded as "a well-founded detailed plan" reflecting the Council's intentions for the future development of the area, including the site and other land zoned R4 High Density Residential. 33I am not persuaded that the deficiency in landscaped area would warrant refusal of consent for a development that is not inconsistent with other residential flat development in the immediate vicinity of the site, and that meets the requirements of the new planning controls that come into force in two weeks' time and thus is consistent with future development in the locality. 34Considering the issues raised by objectors, I am satisfied that the proposed development provides an acceptable level of landscaped area. The amendments to the proposed plantings along the eastern boundary address the concerns raised by the owner of 72 Atchison Street concerning privacy and overshadowing. While the objectors raised concerns as to an increase in local traffic in Atchison Lane and loss of street parking availability, I note that it was not in dispute that the proposed development meets the applicable parking requirements, and complies with the requirements of the 2002 DCP requiring vehicle access from a rear laneway where it exists. The objectors expressed a preference that Atchison Street be restricted to one-way traffic, however that is not an aspect of the present application. 35Having considered the aims and objectives of the 2001 LEP, including the objectives of the Residential C zone, the residential zone objectives and the specific objectives of the landscaped area controls, and the matters raised by the objectors, in circumstances where it was common ground that the proposed development meets the requirements of the applicable height and setback controls, the departure from the fencing height requirement is justified, and amenity issues relating to privacy, natural light, solar access, public safety and unit layout are appropriately addressed, I am satisfied that the proposed development should be approved.

Conclusion 36I am satisfied that it is appropriate to grant development consent for the proposed development subject to the conditions which have been agreed by the parties. 37The orders of the Court are:

1. The objection under State Environmental Planning Policy No 1 - Development Standards to compliance with the development standard in cl 20(2) of North Sydney Local Environmental Plan 2001 is upheld.
2. Development Application DA449/12 for the demolition of four detached dwellings and construction of a five storey residential flat building at 66-70A Atchison Street Crows Nest is approved subject to the conditions in Annexure A.
3. The exhibits are returned except for exhibits A, B, 3, and 5. 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: 02 September 2013