Mod Urban Pty Ltd v Inner West Council

Planning framework

1. There are preconditions to the exercise of power to grant development consent for the proposal pursuant to cll 4.6(2) and 5.10(4) of the Marrickville Local Environmental Plan 2011 (LEP 2011).
2. The site is zoned R2 Low Density Residential pursuant to LEP 2011. The objectives of the zone, to which I have had regard, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
3. The site is identified as a local heritage item (Item 131, Sch 5 to LEP 2011). The consent authority, or the Court exercising the functions of the consent authority, must have regard to the effect of the proposal on the heritage significance of the item, before granting consent under cl 5.10 of LEP 2011. I have considered the effect of the proposal on the heritage significance of the item, identified in Sch 5 to LEP 2011 as, "Victorian villa, including interiors", and I am satisfied that the replacement of the existing structure with a new garage and room over will not affect the identified heritage significance of the item, because the new garage is a sympathetic addition to the curtilage of the heritage villa.
4. The height of buildings development standard for the site is 9.5m (cl 4.3 of LEP 2011) and the proposal complies with the maximum height development standard.
5. The floor space ratio (FSR) development standard for the site is 0.6:1 (cl 4.4 of LEP 2011). The objectives of the FSR development standard are: (a) to establish the maximum floor space ratio, (b) to control building density and bulk in relation to the site area in order to achieve the desired future character for different areas, (c) to minimise adverse environmental impacts on adjoining properties and the public domain.

Contravention of the FSR development standard

1. The proposal has a FSR of 0.75:1.
2. The applicant provided a written request seeking to justify the contravention of the FSR development standard, prepared by Mod Urban and dated April 2022.
3. Clause 4.6(4) of LEP 2011 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 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.
4. 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 2011 (Initial Action at [29]).

The applicant's written request to contravene the FSR development standard

1. 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
2. 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]).
3. 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).
4. 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]).
5. The applicant's written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary because the proposal is consistent with the objectives of the FSR development standard, for the following reasons:

• The bulk and scale of the proposal is consistent with the existing building envelope on the site;
• The scale of the proposal is consistent with the scale of residential development in the locality;
• The proposal achieves an appropriate built form and maintains the character of the streetscape.

1. 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]).
2. 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 FSR development standard as justified because the villa on the site, identified as the heritage item, is retained. I am satisfied that justifying the aspect of the development that contravenes the development standard, as maintaining the existing heritage villa on the site can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

1. 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]).
2. I am satisfied that the amended proposal is consistent with the zone objectives, and the FSR development standard objectives, because the proposal maintains the existing villa and provides a new garage that is sympathetic to, and complements, the presentation of the villa to the public domain.

Conclusion

1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 28 April 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.

Orders

1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. DA2021/0482, as amended, to demolish the existing garage and part of the wall to Fitzroy Lane, and to construct a double garage with a room over, at 69 Albermarle Street, Newtown, is determined by the grant of consent, subject to the conditions at Annexure A. 3. The Applicant is to pay the costs of the Respondent thrown away as a result of the amendment of the development application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. Susan O'Neill Commissioner of the Court Annexure A (244171, pdf)

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