Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 1205 | Case summary

Findings 30The consequence of the decision of Pepper J is that the reasoning in Terrace Towers and the "stream of authorities" both proceeding and succeeding that decision must be applied to the determination of the development application. 31Mason P in Terrace Towers (with whom Spigelman CJ and Ipp JA agreed) stated (at [50]-[51] and [53]: 50 The cases acknowledge that (as regards a proposal) the relevant instrument is not to be treated as made. But the terms of the transitional provision and the command of s79C(l)(a)(ii) themselves require proper regard to be given to draft instruments that have been exhibited. The cases recognise that proper regard means that some draft instruments are entitled to significant weight. 51 Cowdroy J did not err in law in paying significant weight to the fact that LEP 2000 was actually in force at the time of the proceedings before him. It remained a draft instrument as far as the proposal was concerned, by virtue of the command of the transitional provision. Section 79C(l)(a)(ii) nevertheless authorised the consent authority to pay regard to relevant provisions in a draft instrument. Its provisions had become certain and its commencement imminent (in relation to the date of lodgment of the instant development application). Common sense explains why significant regard may be given to one whose commencement is imminent and whose terms have become certain. "Imminence" indicates close temporal proximity of application, but stops short of "presence" or "arrival". ......... 53 The relationship between LEP 1993 and LEP 2000 was correctly stated in the next paragraph of the judgment (emphasis added): [17] Hence the relevant planning controls for the purposes of this development application are to be found in LEP 1993 although the otherwise applicable provisions of LEP 2000 are matters to be taken into consideration. Such provisions are to be given weight as if they were certain and imminent because LEP 2000 has now been gazetted (Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209). 32Further (at [59]) Mason P said: .....The transitional provisions require LEP 2000 to be taken into account, albeit on the basis that it is not to be regarded as "made"..... The obvious intent is that the consent authority may look at those provisions of LEP 2000 that are pertinent to the zone and the proposed development...... 33In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve. 34His Honour further stated (at par [35]): ...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected. 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application. 35The parties, in their written submissions, agree that as LEP 2012 has been made, it is "imminent and certain" and should be given significant weight. However, they reach different conclusions on whether the proposal undermines the expressed future planning objectives for the area in LEP 2012, in particular, the FSR (cl 4.4) and height controls (cl 4.3). 36While LEP 2012, must be given significant weight, the relevant planning controls under which the development application must be assessed remain those in WLEP 1995 (Terrace Towers at [53]). Consistent with the decision of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827, upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. 37In considering whether to uphold the SEPP 1 objections in Maygood, I had regard to WLEP 2012 in determining the likely future character of the site. As noted by Pepper J (at [16] to [18]): 16 However, in determining the SEPP 1 objections, the Commissioner found it relevant to assess the existing and likely future context of the site, which in turn meant having regard to the 2012 LEP. In her opinion, the instrument should be considered in determining whether strict compliance with the FSR and height standards in the 1995 LEP were unreasonable, unnecessary or tended to thwart the attainment of the objects of the EPAA specified in s 5, and thus, whether the SEPP 1 objections were well founded. In short, the 2012 LEP provided "guidance as to the development likely to occur through future development applications on other land and to the likely future character of the locality of the site" (at [29]). 17 But notwithstanding the provisions of the 2012 LEP, the Commissioner held that the SEPP 1 objections were not well founded and she dismissed the appeal (at [59]-[61]). 18 No issue was raised in this appeal as to whether, even if I upheld the grounds of appeal raised by Maygood, the appeal should nevertheless be dismissed on the basis that any error by the Commissioner was immaterial to her decision given her consideration of the 2012 LEP in determining the SEPP 1 objections. In the absence of any argument on this point I would have extreme misgivings about entertaining it, and therefore, as a matter of fairness to Maygood, do not do so. 38The parties have different interpretations on the extent to which the error in the application of cl 1.8A effected my decision, given that I had considered WLEP 2012 in determining the SEPP 1 objections. The council submits that the error is immaterial to my decision. Whereas, the applicant submits that, as council did not make this submission to the Court on appeal it is therefore not open to it to do so in the remitted appeal. 39While I gave weight to WLEP 2012 in determining the likely future character of the locality, it is appropriate that I reconsider the SEPP 1 objections in light of the decision of Pepper J. Are the SEPP 1 objections well founded? 40Preston CJ in Wehbe comprehensively examines the requirements to uphold an objection under SEPP 1. Upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits. His Honour states (at [39] to [40]) that the Court must be satisfied of the following three matters: 38 First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8. 39 Secondly, the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 "and is also"). The aims and objects of SEPP 1 set out in clause 3 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". The last mentioned objects in s 5(a)(i) and (ii) of the Act are 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 coordination of the orderly and economic use and development of land." 40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are: "(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument". 41His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states (at [42] to [43]): 42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard... 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. 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). 42Preston CJ (at [44]) notes, "although this way is commonly invoked, it is not the only way to establish that compliance with a development standard is unreasonable or unnecessary". His Honour then discusses other ways that are explained in the authorities, including (at [47]): 47 A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable: North Shore Gas Co. Pty Ltd v North Sydney Municipal Council, unreported, LEC No 10185 of 1986, 15 September 1986, Stein J at pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282 [69]-283 [70]. 43Although, the SEPP 1 objections that were submitted with the development application relied on achieving the objectives of the standard, Mr Tomasetti, for the applicant in the Maygood appeal, submitted that the FSR and height controls in LEP 1995 had been effectively abandoned and were irrelevant, which I discuss (at [52]) in Maygood. I maintain my decision that because the proposal and other developments already exceed the FSR control in cl 23(e) of WLEP 1995 of 1.5:1, this does not mean that the control has been abandoned, in the manner suggested by Preston CJ. Even if this were the case, the FSR control in WLEP 2012 of 1.7:1 is not dissimilar to the earlier control and as WLEP 2012 has only recently been made, the new FSR control has clearly not been abandoned. 44While the height control in WLEP 2012 must be given considerable weight it does not mean that the height control in WLEP 1995 is "irrelevant" as submitted by the applicant. If this were the case, the savings clause in cl 1.8A would have no work to do as once a Draft LEP is made, the provisions of the earlier instrument under which the application was lodged, would not be a consideration in the assessment of that application. 45Notwithstanding the commencement of WLEP 2012, upholding the SEPP 1 objections to the development standards for height and FSR in LEP 1995 remain a precondition to the granting of development consent. In considering whether the SEPP 1 objections are well founded, the height and FSR controls and their objectives in cl 4.3 and cl 4.4 of WLEP 2012 must be given significant weight. The relevant question is whether the proposed development will, as stated in Blackmore Design (at 35), in general terms, be consistent with the expressed future planning objectives for the area. 46The approved development and the proposal exceed the FSR control in both WLEP 1995 and WLEP 2012. The objectives of the FSR control are set out in cl 13(e) in WLEP 1995 as: (a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land, (b) to limit traffic generation as a result of that development, (c) to limit the bulk and scale of that development. 47For the reasons set out in Maygood, I accepted that the objective (a) and (b) were met, but not objective (c). 48The objectives of the FSR control in cl 4.4 of WLEP 2012 are: (a) to limit the intensity of development to which the controls apply so that it will be carried out in accordance with the environmental capacity of the land and the zone objectives for the land, (b) to limit traffic generation as a result of that development, (c) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (d) to manage the bulk and scale of that development to suit the land use purpose and objectives of the zone, (e) to permit higher density development at transport nodal points, (f) to allow growth for a mix of retail, business and commercial purposes consistent with Chatswood's sub-regional retail and business service, employment, entertainment and cultural roles while conserving the compactness of the city centre of Chatswood, (g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood, (h) to provide functional and accessible open spaces with good sunlight access during key usage times and provide for passive and active enjoyment by workers, residents and visitors to the city centre of Chatswood, (i) to achieve transitions in building scale and density from the higher intensity business and retail centres to surrounding residential areas, (j) to encourage the consolidation of certain land for redevelopment, (k) to encourage the provision of community facilities and affordable housing and the conservation of heritage items by permitting additional gross floor area for these land uses. 49The applicant's written submissions that these objectives are achieved largely rely on the additional bulk being imperceptible and a de minimis increase over what was already approved. Further, the applicant submits that the bulk is acceptable as it is below the height control in cl 4.3 and would achieve an appropriate transition with the "massively high" buildings in the Chatswood CBD. 50On the basis of the evidence before me in Maygood, I found that the proposal would add to the visual bulk of the building and increase overshadowing of the adjoining building. I also did not accept the applicant's reliance on higher buildings, such as 38 Albert Street, which was approved under different planning controls, to justify a further increase in FSR. Under WLEP 2012 that land remains in a different zone being within the B4 Mixed Use Zone with a maximum FSR of 2.7:1 and a maximum height limit of 34m. Similarly, under WLEP 2012, the council car park and land opposite are within the B4 Mixed Use zone with a maximum height limit of 34m but no FSR control. Other land in Devonshire Street, to the north of Johnson Street, is within the same R4 zone as the site. Land in Devonshire Street, to the south of Johnson Street is zoned R2 Low Density Residential with a maximum FSR of 0.4:1 and a maximum height of eight metres. 51Objective (i) of the FSR control in cl 4.4 of LEP 2012 seeks to achieve transitions in building scale and density from the higher intensity business and retail centres to surrounding residential areas. A further increase in the FSR of the development on the site would not achieve an appropriate transition between these sites in the Mixed Use zone and the residential development in Devonshire Street. The SEPP 1 objection to the original application, and subsequent amendments, accepted that the exceedance of the FSR control in WLEP 1995 was acceptable principally because the development maintained the bulk, scale and density of the existing residential development in Devonshire Street, north of Johnson Street. The experts have agreed that these developments are unlikely to change under WLEP 2013 as they exceed the FSR control and are strata titled. It therefore remains appropriate that the proposed development fit in with these residential buildings to form an appropriate transition between the existing and potential development in the B4 Mixed Use Zone and the residential areas in Devonshire Street. 52The increase in bulk in the current proposal beyond that anticipated by the FSR control in cl 4.4 of WLEP 2012 is not justified on the basis of meeting the objectives of this control. 53In Maygood, I accepted Ms Laidlaw's opinion that the objectives of the nine storey height control in cl 24(1)(d) of WLEP 1995 are to limit impacts such as overshadowing, privacy and views and to be compatible with the existing and desired future character. 54The proposal will be 3m lower than the height limit of 34m in WLEP 2013, however, this is a maximum control and its achievement is dependent upon satisfying the objectives of the control and also works together with other controls such as FSR. The objectives of the height control in cl 4.3 of WLEP are: (a) to ensure that new development is in harmony with the bulk and scale of surrounding buildings and the streetscape, (b) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (c) to ensure a high visual quality of the development when viewed from adjoining properties, the street, waterways, public reserves or foreshores, (d) to minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments or from public open spaces with the height and bulk of the development, (e) to set upper limits for the height of buildings that are consistent with the redevelopment potential of the relevant land given other development restrictions, such as floor space and landscaping, (f) to use maximum height limits to assist in responding to the current and desired future character of the locality, (g) to reinforce the primary character and land use of the city centre of Chatswood with the area west of the North Shore Rail Line, being the commercial office core of Chatswood, and the area east of the North Shore Rail Line, being the retail shopping core of Chatswood, (h) to achieve transitions in building scale from higher intensity business and retail centres to surrounding residential areas. 55Objectives (a) and (f) of cl 4.3 are similar to those I accepted for cl 24(1)(d) and for the reasons in Maygood, are not met by the current proposal. Similarly, for the reasons discussed above, the proposal does not meet objective (h) in cl 4.3. 56In Maygood, I found (at [56] to [61]) that the proposal did not meet the objectives of the height and FSR controls in WLEP 1995 for the following reasons: 56 The experts disagree on whether the SEPP1 objection is well founded and also whether the objectives of the FSR and height standard are met. The key disagreement is whether the height, bulk and scale of the development fits into the existing and likely future context. This difference of opinion centred principally on the increase in height (number of storeys) and the reduction in the southern setback of level 9. 57 I accept Ms Laidlaw's evidence that these changes will add to the visual bulk of the building and impact on the scale relationship of the development with nearby buildings. Despite the non compliance with the FSR standard, the original development met objective (c) of the FSR standard on the basis that its bulk and scale were compatible with nearby buildings. This compatibility largely relied on the parapet of level 8 (RL116m) with a recessed level 9 (RL118.7m). While level 9 was visible from the street, it appeared as a "floating element" and did not add materially to the overall bulk of the building. Similarly, the dominant parapet and the recessive nature of level 9 were compatible with the heights and street frontages of nearby buildings, which form the existing context. 58 While the council car park and land opposite the site may be developed with larger buildings under WLEP 2012, the predominant context into which the proposal must fit, is that established by the predominate built form of nearby buildings which are unlikely to be redeveloped. 59 The additional height and FSR will add to the bulk of the building and will alter its scale relationship with nearby buildings. From the photomontages, it is clear that the proposed Level 9 and 10 will be partially visible from the street and will not appear as floating, recessive elements but as additional storeys, which occupy most of the street frontage and add bulk to the building. The bulk of the proposal will appear greater than that of the nearby buildings. The proposal will appear as a ten storey building which is greater than the number of storeys of nearby buildings and therefore does not meet the objective of the height control in cl 24(1)(d) of WLEP 1995. The SEPP 1 objections to the FSR and Height standards in WLEP 1995 are therefore not well founded and for this reason the application must fail. 60 In addition, the increased height and bulk, principally from the roof overhang, will increase overshadowing of units in Chamberlay. While the solar access would still comply with the requirements of the DCP, I accept Ms Laidlaw's opinion that it is not reasonable to reduce the amenity of these units through the loss of sunlight, which results from a non complying element of the proposal. 61 The proposed conditions to setback levels 9 and 10 from the southern boundary and to cut back the roof overhang would reduce the bulk of the proposal and the overshadowing impact. However, the proposal would remain 10 storeys and not meet the objectives of the height control in WLEP 1995. 57In considering the evidence and the further submissions of the applicant, I find that there is no reason to change the conclusions I reached in Maygood, other than the application of cl 1.8A of WLEP 2012. In Maygood, I have already found that the proposal in its current form is not in harmony with the bulk and scale of surrounding buildings in the streetscape and does not respond to the desired future character given that the predominant character of the residential flat buildings is unlikely to change. 58Increasing the setback of levels 9 and 10 from the southern boundary and cutting back the roof overhang (or introducing slots) would reduce the bulk of the building and its overshadowing impact. However, I do not accept the applicant's alternate submission that the development application should be approved subject to a deferred commencement condition, which would require these changes. There is a degree of uncertainty as to the final form and impacts of such an amended proposal and whether it would meet the objectives of the height and FSR controls. It is more appropriated that such changes be made through a new application, or s96 application, which would be assessed under the current planning controls. 59For the reasons in Maygood, I found that the SEPP 1 objections to the height control in cl 24(1)(d) and the FSR control in cl 23(e) are not well founded. In reconsidering the SEPP 1 objections in light of the significant weight that must be applied to WLEP 2012, I find that the proposal is not consistent with the future planning objectives for the area in WLEP 2012 as expressed by the objectives for FSR in cl 4.4 and height in cl 4.3 of WLEP 2012. I therefore reach the same conclusion that the SEPP 1 objections are not well founded and that granting consent to the application would not be consistent with the aims of SEPP 1 as set out in clause 3. Furthermore, in considering cl 8(b) of SEPP 1, while there may be no public benefit in maintaining the height and FSR controls in WLEP 1995, there would be a public benefit in maintaining the FSR control in WLEP 2012, given that it has only recently commenced and achieves a proper planning purpose. For these reasons the application must fail.

Maygood Australia Pty Ltd v Willoughby City Council

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Judgment (8 paragraphs)

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Cases Cited (26)

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