[2018] NSWLEC 118
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446
Source
Original judgment source is linked above.
Catchwords
[2018] NSWLEC 118
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446
Judgment (6 paragraphs)
[1]
The applicant's written request to contravene the height of buildings 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 [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 [22]).
The applicant's written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the proposal would comply with the maximum building height of 8.5m if the existing ground level was taken to be the natural topography of the hill.
The proposal is compliant with the height of buildings development standard when the existing ground level on the site, outside of the footprint of the existing building and landscape works, is used to determine the height of buildings development standard plane overlaid above the site. A portion of the site was excavated for the construction of the existing building and landscaping works and the ground level was lowered by the excavation within the footprint of the existing building and for footpaths and stairs across the site. The proposal is greater than 8.5m above the excavated ground level within the footprint of the existing building and above existing footpaths. The excavation creates an anomaly in the height of buildings development standard plane overlaid above the site, so that there is a step or a dip in that plane that does not reflect in the overall topography of the hill.
The existing level of the site at a point beneath the existing building is the level of the land at that point. The ground level (existing) within the footprint of the existing building is the extant excavated ground level on the site and the proposal exceeds the height of buildings development standard in those locations where the vertical distance, measured from the excavated ground level within the footprint of the existing building or above footpaths, to the highest point of the proposal directly above, is greater than 8.5m.
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]).
The prior excavation of the site within the footprint of the existing building and landscaping works, which distorts the height of buildings development standard plane overlaid above the site when compared to the topography of the hill, can properly be described as an environmental planning ground within the meaning of cl 4.6(3)(b) of LEP 2012. I am satisfied that justifying the aspect of the development that contravenes the height of buildings development standard in this way can be properly described as an environmental planning ground within the meaning identified in the text of the provision and interpreted by his Honour in Initial Action at [23].
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).
[2]
Contravention of the wall height development standard under LEP 2012
The proposal has a maximum wall height of 8.97m from the lowest level of the existing dwelling to the underside of the master bedroom roof.
The applicant provided an amended written request seeking to justify the contravention of the wall height development standard, prepared by GSA Planning and dated July 2022.
The applicant justifies the exceedance of the wall height development standard on the basis that the existing ground level is measured from the excavated, basement level of the existing dwelling. Had the existing ground level been the natural topography of the hill, the proposal would not have exceeded the wall height development standard. The excavation creates an anomaly in the wall height development standard plane overlaid above the site, so that there is a step or a dip in that plane that does not reflect in the overall topography of the hill.
The prior excavation of the site within the footprint of the existing building and landscaping works, which distorts the wall height development standard plane overlaid above the site when compared to the topography of the hill, can properly be described as an environmental planning ground within the meaning of cl 4.6(3)(b) of LEP 2012.
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).
[3]
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 under 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 that the proposal is consistent with the R2 zone objective and the height of buildings development standard objectives for the reasons set out by the applicant in the cl 4.6 written requests. I am satisfied that the proposal is of a bulk and scale that is commensurate with the bulk and scale envisaged by the applicable development standards for a residential building on the site in this low density residential zone, and as such, the proposal does not unreasonably impact on existing views across the site from surrounding development and the public domain.
[4]
Conclusion
I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 17 June 2022 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.
[5]
Orders
The orders of the Court are:
1. The appeal is upheld.
2. Development Application No. 8.2021.436.1 for the demolition of an existing dwelling and construction of a new dwelling and swimming pool, at 4 Wyargine Street, Mosman (Lot 46 in DP 666727), is determined by the grant of consent, subject to the conditions of consent at Annexure A.
Susan O'Neill
Commissioner of the Court
27773.22 Annexure A (355410, pdf)
[6]
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: 15 September 2022
Parties
Applicant/Plaintiff:
Luigi Rosselli Pty Limited
Respondent/Defendant:
Mosman Municipal Council
Cases Cited (7)
Contravention of the height of buildings development standard under LEP 2012
The proposal has a maximum height above existing ground level of 9.35m.
The applicant provided an amended written request seeking to justify the contravention of the height of buildings development standard, prepared by GSA Planning and dated July 2022.
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 [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 proposed 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]).