[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 at [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]):
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 building envelope of the proposal is confined to the portion of the site subject to a FSR of 1.3:1 and there is no part of the building envelope located at the rear of the site. By concentrating the development in the front portion of the site, the biodiversity mapped land to the rear of the site is retained.
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]). 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 development standard as a justified response to the constraint of retaining the biodiversity mapped land at the rear 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].
[2]
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]).
The applicant justifies the location of the building envelope on the front portion of the site in response to the constraint of retaining the biodiversity mapped land at the rear of the site as achieving the objectives of the zone and the development standard, because the proposed building envelope has a form and scale consistent with surrounding development in the town centre and the proposal does not result in any additional amenity impacts on adjoining properties when compared to a compliant building envelope partly located on the environmentally sensitive land.
I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the zone, for the reasons given by the applicant in the written request.
[3]
Contravention of the height of buildings development standard
The proposal has a maximum height above existing ground level of 21.7m to the roof at the rear of Unit 601.
The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by Chapman Planning Pty Ltd and dated 22 April 2020.
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 building envelope of the proposal is confined to the front portion of the site and there is no part of the building envelope located at the rear of the site. By concentrating the development in the front portion of the site, the biodiversity mapped land to the rear of the site is retained.
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 development standard as a justified response to the constraint of retaining the biodiversity mapped land at the rear 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].
The applicant justifies the location of the building envelope on the front portion of the site in response to the constraint of retaining the biodiversity mapped land at the rear of the site as achieving the objectives of the zone and the development standard, because the proposed building envelope has a form and scale consistent with surrounding development in the town centre, including presenting a 4-6 storey elevation to Pacific Highway, and the proposal does not result in any additional amenity impacts on adjoining properties when compared to a compliant building envelope partly located on the environmentally sensitive land.
I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the zone, for the reasons given by the applicant in the written request.
[4]
Contravention of the site requirements for residential flat buildings development standard
The site has an area of 3249sqm and a frontage of 25.79m.
The applicant provided a written request seeking to justify the contravention of the site requirements for residential flat buildings development standard prepared by Chapman Planning Pty Ltd and dated 22 April 2020.
The applicant's written request justifies the contravention of the site requirements for residential flat buildings development standard on the basis that compliance is unreasonable or unnecessary because the applicant made formal offers to amalgamate the site with 1458 Pacific Highway and those offers were rejected; the proposal achieves a form and scale that complies with the controls for setbacks and areas of landscaping required by Ku-ring-gai Development Control Plan; and the proposed building envelope has a form and scale consistent with surrounding development in the town centre.
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 non-compliance with the development standard as justified by the circumstance of being unable to amalgamate the site with an adjoining site. I am satisfied that justifying the aspect of the site that is non-compliant with 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].
I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the zone, for the reasons given by the applicant in the written request.
[5]
Orders
The orders of the Court are:
1. The appeal is upheld.
2. Development Application No. 337/17 (as amended) for the demolition of existing structures and the construction of a residential flat building comprising 36 units, basement parking and associated landscaping, at 1456-1456A Pacific Highway, Turramurra, is approved, subject to the conditions of consent at Annexure A.
[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: 01 July 2020
Parties
Applicant/Plaintiff:
Mackenzie Architects International Pty Ltd
Respondent/Defendant:
Ku-ring-gai Council
Cases Cited (6)
Contravention of the FSR development standard
The FSR of the proposal is 1.18:1 on the portion of the site subject to a FSR of 1.3:1 and there is no development proposed on the rear portion of the site subject to a FSR of 0.85:1.
The applicant provided a written request seeking to justify the contravention of the FSR development standard prepared by Chapman Planning Pty Ltd and dated 22 April 2020.
Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] ("Initial Action")). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action at [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the 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) (Initial Action at [29]).