Michael Murr V Georges River Council [2017] NSWLEC 1369

Findings on the application of LEP savings clause 1.8A

Notwithstanding the argument of the Council, the explanation given by the Department for modifying the savings provision (clause 1.8A) does not assist in determining how the clause as worded should apply although it does indicate what was intended. Unfortunately the clause wording at cl 1.8A(2) does not match or reflect the explanatory wording in the letter.
If the intent of cl 18A(2) was to only relate to 'prohibited development' in terms of permissible uses, zone changes or non-discretionary provisions as the Council contends, rather than development precluded by a contravention of a development standard, it doesn't state this. The amended cl 1.8A must be read as it is constructed which is by referencing only to prevention of the granting of consent which could arise in circumstances other than just by a development being 'prohibited'.
In this instance the development is not 'prohibited', in the commonly understood use of that word in planning controls and assessment, but there are pre-conditions to be met under the LEP as amended before consent can be granted. As those pre-conditions are not met and cannot be mandated by the Court, then, in my view, consent cannot be granted and the application must therefore be determined as if Amendment 2 to the LEP had not been made.
The parties agree that the application as it currently stands proposes breaches of the height control for the site introduced by LEP Amendment 2 and that, if those breaches are to be consented to, a written request under cl 4.6 of the LEP needs to first be submitted by the applicant and considered by the Court. Also that such a written request has not been submitted or considered.
Therefore I am precluded from consenting to the application as sought by the applicant with breaches to the height control as a consequence of cl 4.6 (3): Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard…'.
I cannot agree with the Council that I could issue a partial consent or condition a consent to redress the breaches. The clause is clear that no consent can be granted of any form without the pre-condition contained in cl 4.6(3) having first been met.
I also cannot agree with the Council that the Court has the power to require the applicant to submit a cl 4.6 request in order that the application can then be assessed under the LEP as amended, albeit this was a course of action that could have been pursued by the applicant once Amendment 2 came into force.
I do not disagree with the Council that the intent of the Department in its amendment to the savings provision may have been to confine those applications to be 'saved' to prohibited development which could not become permissible by relatively simple actions of the applicant. However, the additional wording added by cl 1.8A(2) does not confine itself to, or even reference, prohibited development. It also does not reference 'determining' applications only to determination by the granting of consent.
In terms of whether or not the application of the amended cl 1.8A in the manner I suggest is correct leads to an absurd or irrational application, it is not the case that the coming into effect of Amendment 2 has dramatic impacts on the outcome of the development application as may be the case for 'prohibited' developments typically 'saved' by savings provisions when LEP provisions change.
In this instance, the development has had regard to and generally reflects the planning controls in Amendment 2 given the imminency of the amendment at the time the application was lodged. On merit, the experts for both parties supported the application on the basis of the impending LEP Amendment 2 controls now in effect and the application would have been consented to (as proposed) by the Court even had the LEP Amendment 2 not been made at the time of the determination.
Similarly, once Amendment 2 had been made the same application could be lodged and approved in the same form save only for the addition and consideration of a cl 4.6 request which would argue presumably the same arguments as those promoted by all of the experts which would lead to the same conclusions as to the acceptability of the application, and therefore of the development, with the heights proposed. The only difference would be a procedural one with the additional requirement to first uphold the formal cl 4.6 request.
Therefore, no better planning outcome is achieved by assessment under either the LEP immediately prior to or post Amendment 2 and no different merit considerations would apply given the objectives of the zone have not changed and those introduced with the height standard reflect the considerations already at play in considering the application prior to Amendment 2 coming into effect.
In summary, I have determined that I am precluded from consenting to the application that is before the Court under cl 4.6(3) of the LEP (which was not affected by LEP Amendment 2) as that amendment introduced height controls which the application breaches and no cl 4.6 request has been submitted by the applicant for me to consider. Therefore consent can not be granted under the LEP as it now applies. Accordingly, under cl 1.8A(2) in order to grant consent to the application in its current form, as is my intent, consent must be granted as if Amendment 2 to the LEP had not been made. That is the consent I now so issue.

The evidence on the development

Experts were appointed by both parties in the areas of traffic engineering, town planning and urban design.
Through joint conferral of these experts, and with various modifications to the application as a result of that conferral, all experts agreed that there were no remaining Council contentions warranting refusal of the application.
In this regard, the amended basement, access and parking arrangements satisfied the traffic experts who agreed that, notwithstanding objectors' concerns in terms of limited onstreet parking and traffic issues in Plant Street, the development complied with the required parking and access arrangements. Further, there were no concerns with the safety of pedestrians or cars in Plant Street or with the capacity of the local road system to cope with the additional traffic generated by the development. As a consequence, no expert evidence, beyond the joint report prepared by the traffic experts (Exhibit 9), was provided on traffic or parking matters.
Similarly the four urban designers and planners engaged by the parties (the design experts) prepared a joint report (Exhibit 8) which concluded that all of the Council contentions with regard to planning and urban design matters had been addressed by modifications to the application and there were therefore no remaining design matters warranting refusal of the application.
Notwithstanding the agreement of the design experts that the design contentions raised by the Council had been addressed, additional evidence was sought by the Court from these experts on the issues raised by neighbouring residents.
In addition to the relevant planning and technical controls, the design experts had considered the following key issues in the appeal: 1. visual impacts in relation to streetscape quality and compatibility with smaller scale residential neighbours 2. residential amenity within the proposed development in terms of both apartments and common areas 3. amenity impacts for the immediate residential neighbours at 21 Plant Street and 405-407 Princes Highway 4. the isolation of 21 Plant Street.
In terms of visual impact and the compatibility with residential neighbours and the streetscape, the experts agreed that the amended plans demonstrated positive responses to the primary issues that the Council had raised with the application. In particular, the amended application had reduced heights of exterior walls facing 21 Plant Street and the western portion of 405-407 Princes Highway which complemented the tapering alignments of the northern and southern facades and accommodated progressive increases in building separation and deep soil landscaping towards the western boundary.
The experts also considered that the streetscape presentation had been enhanced by reconfiguring the building form and redesigning facades in order to eliminate a bulky appearance and achieve modulation which contributed to the streetscape compatibility and quality. This was enhanced by landscaping within the street setback and increased setbacks to residential neighbours.
In terms of the residential amenity for future occupants of the building, the experts noted that apartment layouts had been rationalised and reconfigured so that all habitable rooms had sufficient amenity and outlook with all apartments save one being oriented toward the rear or street rather than overlooking residential neighbours. Further, the open space which had been proposed above the basement and consequently overlooked the rear yard of 21 Plant Street had been eliminated and the rooftop communal area relocated with fixed planters along western and southern edges to prevent overlooking of neighbours.
In terms of other amenity impacts for neighbours, the southern and western setbacks accommodated screen planting and deep soil landscaping to prevent ground level overlooking and west facing windows of living rooms had been narrowed with translucent glass fitted to specific windows to reduce potential privacy impacts. In addition to fixed planters to protect privacy of neighbours, the rooftop communal open space had been reduced to restrict the size of potential gatherings and was located to provide the ability to manage this area given the proximity to penthouses within the proposed development.
Finally, the midwinter shadow impacts which most affected the townhouses at 405-407 Princes Highway were within acceptable levels albeit that two townhouses would still have midday sunlight restricted but would continue to receive 2 to 2.5 hours of sunlight daily to living room windows and at least half of the principal private open space areas.
The proposed development has a height in the order of 13 m at the rear where it is in closest proximity to 21 Plant Street and the townhouses to the west. At its lowest height of 12.93 m, the building is more than 2 m below the maximum height permitted in LEP Amendment 2 in recognition of the proximity and circumstances of the dwellings at 21 Plant Street and 405-407 Princes Highway.
The building breaches the 15 m proposed control by some 1.48 m to accommodate the lift overrun however, the applicant argued, and the experts agreed, that this was in the centre of the site where no amenity impacts arose. A further breach of the height to 16.23 m was proposed in the south western front portion of the site adjoining the highway resulting from the need to meet minimum flood planning levels. The applicant argued, and the experts agreed, that this breach did not result in unacceptable amenity impacts for neighbours and was offset by the benefits arising from the reduction in height proposed at the rear.
However, Mr Cole submitted that breaching the 15 m height control proposed in LEP Amendment 2 would set an undesirable precedent being the first development approved under these new controls yet not complying with them. Although he accepted a clause 4.6 request was not required under the (then) current LEP, Mr Cole argued that the considerations under cl 4.6 should be applied given the applicant sought to rely on the proposed controls in Amendment 2. He argued the applicant was 'double dipping' by seeking the development benefit of the new controls proposed under Amendment 2 but also exemption to having to justify variations to these controls relying instead on the provisions of the existing LEP.
Mr Cole reinforced the claims by Mr Asanatov that there was limited if any real prospect of any of the other surrounding properties in the R3 Precinct being redeveloped given the nature of existing development and notwithstanding the controls proposed in LEP Amendment 2.
Mr Cole argued that the development should provide a more appropriate interface with its neighbours given the change in controls for these properties and that it was unlikely that they would be redeveloped in the foreseeable future. He referenced Click here to enter text.Seaside Property v Wyong Shire Council [2004] NSWLEC 600 which deals with development at the interface between zones. At [25] Bly C states: 25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.
Mr Gough argued that the adjoining sites were in the same zone and therefore Seaside did not apply. In any event, transition had been provided for by the reduction in the height of the development at the rear immediately adjoining its residential neighbours and in the generous setbacks and landscaping provided. He also argued that the provisions under LEP Amendment 2 already provided for transitioning in the differing controls for the subject site relative to the adjoining properties in the same zone given that these properties had a lower height limit and FSR in LEP Amendment 2.
The Council sought a further reduction in height from 4 to 3 storeys adjoining 21 Plant Street and proposed a condition of consent requiring the deletion of the most north westerly apartment to achieve this albeit the design experts did not consider such further reduction in height warranted. The experts acknowledged that such a reduction would likely improve the amenity for the occupants of 21 Plant Street but agreed it would not necessarily have a beneficial streetscape outcome. The applicant also argued that the third storey would be of a similar height to the ridge of 21 Plant Street so it would not be transitional.
The applicant's experts argued that there were no material impacts on 21 Plant Street in terms of overshadowing and overlooking. In this regard, the development included fixed planter boxes for the edge of the elevated communal open space, translucent glazing for west facing windows and privacy screens where required. Furthermore, the proposed southern setback (to 21 Plant Street) was well in excess of that required by the Apartment Design Guide (ADG) and the retention of the Norfolk Island pines and the proposed landscaping situated in this setback at the front of the site would assist with minimising the impacts on 21 Plant Street and in terms of streetscape impact.
The design experts agreed there would be some overshadowing of the adjoining townhouses at 405-407 Princes Highway but that the minimum solar access requirements of the relevant controls could still be met. The applicant nevertheless offered to shift the building a further 900 mm from the western boundary to reduce this overshadowing. This modification would result in a slight reduction of floor space and in the rooftop communal open space and a slight increase in the ground level open space, and improve the outlook from the rear yard of 21 Plant Street. It would also further distance the front balcony of the development from the front yard of 21 Plant Street being closer to the street.
The applicant argued that, other than two minor height breaches away from neighbours which were offset by a lowering of height elsewhere on the site, the development was compliant with all relevant controls in LEP Amendment 2 including with the FSR, all setbacks, provision of deep soil landscaping and landscaped site area. Two more parking bays were proposed than were required. Further, through LEP Amendment 2, the Council had effectively 'upzoned' the site to achieve the outcome proposed by this application having full regard to the controls applying to, and circumstances of, the adjoining residential properties.
Therefore the applicant argued that the development clearly reflected the desired future character of the site and the area as envisaged by the impending controls in LEP Amendment 2.
In submissions, Mr Gough argued that, whilst there would be inevitable impacts associated with the proposed development, the Court could not reasonably conclude that the impacts were unreasonable. In particular, in terms of the adjoining residential neighbours, there was no unreasonable overshadowing or overlooking. Whilst there may be some limited overlooking from the communal open space this was not unusual in an urban environment and the applicant had offered to increase the width of the planter boxes so that this would now be unlikely to occur. There were also now significant distances proposed between the communal open space and the rear yard of 21 Plant Street and the communal open space that had been of concern on the ground floor had been deleted.
Finally, Mr Gough re-iterated that the setbacks and height on the rear portion of the building closest to neighbouring residential properties complied with LEP Amendment 2 and the ADG and there was extensive landscaping including to 21 Plant Street. The further height reduction sought by the Council was not supported by any of the design experts, nor had it been the subject of any expert evidence. Nevertheless, the applicant had offered to increase the upper level setback to the townhouses to further minimise overshadowing impacts. He also argued that the owner of 21 Plant Street must accept that the controls allow the form of development proposed having regard to a similar finding in Seaside.
In relation to the site isolation of 21 Plant Street, it was noted that valuations have been prepared for the site and offers made by the applicant to purchase the site prior to the application being lodged but these offers were not accepted.
The site at 21 Plant Street is 18.9 m wide and has an area of some 546 m². It contains a relatively recent dual occupancy development in semi-detached two-storey configuration. As a development site it would not meet the LEP minimum lot requirements for RFBs in the R3 zone or for multi dwelling housing or dual occupancies. The LEP also requires a minimum frontage of 20 m for multi dwelling housing and RFBs.
The design experts disagreed on whether 21 Plant Street could feasibly be redeveloped for an RFB given it was in dual ownership, had restricted ability to provide offstreet parking or comply with side setback or site area or frontage requirements, and was adjoined by lower density dwellings to the north and the proposed higher density development of the appeal site to the south.
It was noted however, that 21 Plant Street is not part of an amalgamation precinct and was in fact excluded from specific site amalgamation requirements of the DCP. The planning experts agreed that, whilst under the minimum lot size and frontage controls for an RFB, an RFB could in fact physically be developed on the site given its width and dimensions and having regard to likely applicable setbacks.
Whilst there was no expert evidence on whether redevelopment of 21 Plant Street for an RFB would be economically viable, the experts noted that, given the value of the current dual occupancy, it was not likely to be currently feasible to demolish it and construct an RFB given the proposed FSR of 1.0:1 for the site under LEP Amendment 2.
The planning experts concluded that the amalgamation of 21 Plant Street with the appeal site was not feasible because it was not reasonable to expect an adjoining owner to pay significantly more than the current market value for a site with limited benefit in terms of FSR and site area. However, they remained of the opinion that a 4 storey RFB could be constructed in the future were it feasible which would provide a suitable transition to the R2 zone to the west.
The planning experts also considered that there was a benefit to the streetscape and to the outlook from the adjoining townhouses in having a split built form as opposed to the built from fronting Plant Street that would occur if 21 Plant Street was amalgamated and developed with the appeal site.
Finally, Mr Gough noted that it would be unusual for a planning control to require amalgamation of sites which had different height and FSR controls as was the case with the appeal site and 21 Plant Street.
Mr Layman, planner for the applicant, argued that 21 Plant Street and the existing townhouses to the west could also be extended to accommodate additional storeys or attic extensions in accordance with the proposed new controls in LEP Amendment 2 even if the redevelopment of these properties was unlikely. This as a likely outcome of the controls introduced by LEP Amendment 2 was not supported by the other experts.

At a glance

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Before

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Judgment (3 paragraphs)

Cases Cited (6)