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 [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 [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 the Chief Judge in Wehbe v Pittwater Council (2007) 156 LGERA 446 [42]-[51] ("Wehbe") and repeated in Initial Action [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 [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 [22]).
The applicant's written request relies on the first way in Wehbe to demonstrate that compliance with the development standard is unreasonable or unnecessary. The written request justifies the contravention of the height of buildings development standard because the non-compliance is confined to rooftop elements including the lift overrun which is located in the centre of the site; there are no adverse amenity impacts on adjoining properties as a consequence of the elements that are non-compliant with the maximum height, and the proposal has been sensitively designed to minimise its impacts on the adjoining R2 zone.
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 [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 [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 [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 [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 existing excavation of the site and an appropriate response to the immediate built context of the proposal. I am satisfied that justifying the aspect of the development that contravenes the development standard on this basis can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action [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 [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action [26]).
The applicant justifies the exceedance of the height of buildings development standard on the basis that the objectives of the standard are met, notwithstanding the numerical non-compliance with the standards, because the height of the proposal is consistent with the natural topography and landform of the site's context; no views are impeded by the proposal; the elements of the proposal that constitute the non-compliance with the maximum height do not result in any additional overshadowing or amenity impacts; the proposal has been designed with sufficient setbacks and landscaping to ameliorate its impact on the adjoining R2 zone; and the proposal is consistent with the desired future character of the locality.
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]
Orders
The orders of the Court are:
1. The applicant is granted leave to amend the application by relying on the amended architectural plans and schedule of finishes set out in condition A1 of the conditions of consent at Annexure A.
2. The Applicant's written request under clause 4.6 of the North Sydney Local Environmental Plan 2013 prepared by Chapman Planning Pty Ltd and dated 21 August 2019 for the non-compliance of the development with the height of buildings development standard in clause 4.3 of the North Sydney Local Environmental Plan 2013 is upheld.
3. The appeal is upheld.
4. Development Application No. 227/18 for the demolition of existing buildings and construction of a residential flat building containing 29 apartments with basement parking on Lots 9, 10 and 11 in DP 8869, known as 5-7 Doohat Avenue, North Sydney, is approved, subject to the conditions of consent at Annexure A.
Susan O'Neill
Commissioner of the Court
Annexure A (495 KB)
[4]
Amendments
18 October 2019 - Correction to [20] - addition of the words "and the zone"
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Decision last updated: 18 October 2019
Parties
Applicant/Plaintiff:
Mackenzie Architects International Pty Ltd
Respondent/Defendant:
North Sydney Council
Cases Cited (4)
Contravention of the height of buildings development standard
The proposal has a maximum height of 15.5m at the lift overrun, plant room and stair (or 17.61m if measured from the existing ground level beneath the existing basement level). The height of buildings development standard for the site is 12m.
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 21 August 2019.
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] NSWLEC 118 [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 proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:
…
(4) Development consent must not be granted for development that contravenes a development standard unless:
(a) the consent authority is satisfied that:
(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
(b) the concurrence of the Secretary has been obtained.
On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action [29]).