MS Windsor St Pty Ltd v Hawkesbury City Council

Land and Environment Court (NSW)|2021-04-09

Judgment

COMMISSIONER: This is an appeal by the Applicant against the deemed refusal of their development application (DA 0547/19) by Hawkesbury City Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The development application seeks consent for demolition of the existing retail units and construction of a three-storey shop top housing development. The development is proposed at 197 Windsor Street, Richmond (Lot 2 DP 556754).
Following the filing of the appeal, the Applicant was granted leave by the Registrar to amend their development application in December 2020. At the commencement of the hearing, the Applicant sought leave to further amend their development in response to the evidence of the various experts in their respective joint reports. Subject to the grant of costs, the grant of leave was not objected to by the Respondent and was granted by the Court. Subsequent to the grant of leave, the experts in the proceedings were directed to joint conference on the amended plans.
The development for which consent is sought comprises:

Two retail shops;
A central covered parking area accommodating 16 car parking spaces;
6 x two-bedroom residential units, 2 x three-bedroom residential units across two buildings, one oriented to the southern boundary and one to the northern boundary;
Bin holding area, loading bay and other service provision; and

Issues

At the hearing, the Respondent maintains that the development application warrants refusal by the Court for the following reasons: 1. That the proposed development exceeds the maximum building height standard and in the absence of a written request to vary the standard, the Court does not have jurisdiction to grant consent to the development. 2. future residents of the proposed development will be subject to unacceptable acoustic impacts arising from aircraft noise and the proximity of the site to the RAAF Base at Richmond. That the Court cannot be satisfied that the development will meet the required indoor sound levels; 3. the Applicant has failed to demonstrate that there is suitable road access to the site and consequently fails to meet the precondition contained at cl 6.7 of the Hawkesbury Local Environmental Plan 2012 (LEP 2012); 4. the proposed development will result in the isolation of the property location at 199 Windsor Street; 5. the proposed development fails to demonstrate that adequate regard has been given to the design quality principles contained in State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development which results in a poor design outcome for future residents, the neighbourhood and the streetscape; 6. insufficient car parking has been provided for the development. Specifically, the development is deficient in the provision of commercial parking and the use of mechanical car stackers is not supported by the Respondent due to concerns of mechanical reliability and head clearance in the stackers.

Subject site and Context

The subject site is located directly opposite the State Heritage listed Richmond Park and is bound by Windsor Street to the north and a laneway and public car park to the south. It is located approximately 250m from Richmond train station and is within the Richmond town centre. The adjoining property to the east is operating as a takeaway food premises.
As outlined in the following aerial photograph, the subject site has an 8.25m width at Windsor Street which widens to 17.75m at the southern lot boundary.
The visual catchment of the site contains a number of buildings listed on the State Heritage Register (SHR), or as a local heritage item in LEP 2012. They include: 1. Richmond Park Pavilion and Statue listed on the SHR and in LEP 2012. 2. 201-205 Windsor Street: a single storey building with three shops. 3. 193 Windsor Street: Commercial Hotel. 4. 187 Windsor Street: Shop
The site is located to the south-west of the RAAF Base at Richmond and is located within the 25-30 Australian Noise Exposure Forecast (ANEF) contours of the Base as identified on the ANEF Map prepared for the RAAF Base in the NSW 2014 ANEF Summary Report (Exhibit 2). A copy of the Map is tendered as part of Exhibit 3.

Planning controls

The site is located within the B2 - Local Centre zone pursuant to LEP 2012. 'Shop top housing' and 'shops' are both permissible uses in the zone.
Pursuant to cl 4.3: Height of Building the maximum height for development on the site is 12m. Clause 4.3 states: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to protect privacy and the use of private open space in new development and on adjoining land, (b) to ensure that the bulk of development is not excessive and relates well to the local context, (c) to nominate heights that will provide a transition in built form and land use intensity, (d) to ensure an appropriate height transition between new buildings and heritage items. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
The following definition in the Dictionary to LEP 2012 is relevant: building height (or height of building) means: (a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or (b) in relation to the RL of a building - the vertical distance from the Australian Height Datum to the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like..
The experts agree that the amended development application breaches the maximum height mapped on the Height of Building Map for the site (refer to [16]).
Clause 4.6 of LEP 2012 is a facultative provision. Clause 4.6(2) of LEP 2012 permits the grant of consent for development even though it breaches a development standard imposed by an environmental planning instrument, in this case LEP 2012. Clause 4.6 states: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (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 by demonstrating - (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. (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 Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider - (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if - (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.
The operation of cl 4.6 is detailed in the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] and [25]: "[13] The permissive power in cl 4.6(2) to grant development consent for a development that contravenes the development standard is, however, subject to conditions. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority can exercise the power to grant development consent for development that contravenes a development standard." "[25] The consent authority, or the Court on appeal, must form the positive opinion of satisfaction that the applicant's written request has adequately addressed both of the matters required to be demonstrated by cl 4.6(3)(a) and (b). As I observed in Randwick City Council v Micaul Holdings Pty Ltd at [39], the consent authority, or the Court on appeal, does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b). The applicant bears the onus to demonstrate that the matters in cl 4.6(3)(a) and (b) have been adequately addressed in the applicant's written request in order to enable the consent authority, or the Court on appeal, to form the requisite opinion of satisfaction: see Wehbe v Pittwater Council at [38]."
The applicant has not provided a written request pursuant to cl 4.6 of LEP 2012 seeking to vary the maximum building height standard at cl 4.3 of LEP 2012.

The amended plans exceed the height standard

Following the grant of leave to amended plans (refer to [2]), the parties urban design and planning experts prepared a supplementary joint expert report (Exhibit 8). This joint report includes statements by the experts acknowledging that the application includes a breach of the maximum height limit (Exhibit 8). "Russell Olsen: '3.1.28 The following statement relates to the overall height of the northern building and Shop 2. 3.1.29 The proposed lift solution has a minimum headroom height of 2500mm. The total lift height is 2700mm including lift roof slab. DA 305 has a roof RL of 29.582. Plus 2.7m this totals an RL of 32.282. The northern lift is sifted at a position on the site where the ground RL = 20.21. The RL of the 12m max height control = 32.21. The lift shaft exceeds the height limit by 72mm. With reference to Contention 3 (e), the roof top RL is an additional 60mm thick based on Drawing 301 Detail 41. The total height exceedance would be 132mm. … 31.33 … The overall height exceeds the 12m maximum height limit. … Farah Georges: 3.1.35 Drawing DA 306 indicates the lift specification, only the top lift shaft roof exceeds the height limit of 130mm, refer to drawing DA 305 indicating (sic) building RLs. … Natalie Nolan: 3.1.36 The non-compliance with the 12.0m height control can be resolved by…'" (Exhibit 8)
I accept the evidence of the experts and find that the amended development application includes a breach of the maximum height development standard of 12m that applies to the subject site: cl 4.3 of LEP 2012.
No written request seeking to vary the height standard pursuant to cl 4.6 of LEP 2012 has been provided by the Applicant.

Submissions

In light of the expert evidence of the height exceedance, Mr Kondilios for the Applicant submits that the exceedance is capable of being resolved by the imposition of a deferred condition of consent as follows: "Height condition The northern building shall have an RL of 31.85 at the top of the lift, to be achieved by reducing the first and second floor levels by 130mm. Such amended plans shall be provided to Council in satisfaction of this condition." (Exhibit K)
In the alternative, Mr Seton submits that the role of the Court is to determine 'the development' as contained in the development application. In his submission, it is that development that is required to be compliant with the development standard at cl 4.3 of LEP 2012. It is Mr Seton's submission that it is not lawfully available to the Court to be satisfied of compliance with the maximum height development standards by a condition, whether or not it is a deferred commencement condition.

No power to grant consent

Pursuant to cl 4.3(2) of LEP 2012, consent must not be granted to development that contravenes the height development standard unless the Court reaches the two requisite states of satisfaction in cl 4.6 of LEP 2012.
I have considered the submissions put by Mr Kondilios that the breach of the height development standard is able to be cured by a deferred commencement condition in the form at [19]. I disagree. Relying on Baron Corporation Pty Ltd v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 at [6]-[9], I am satisfied that the development for which consent is sought is the development which is required to not exceed the maximum development standard. This conclusion is further supported by the decision of the Court of Appeal in Michael Brown Planning Strategies Pty Ltd v Wingecarribee Shire Council [2020] NSWCA 137 at [23]-[25] and [30], which held, in part, that the development subject to evaluation against a precondition is the development proposed by the Applicant in the development application, rather than as modified by condition.
In these proceedings, the Applicant has not provided a written request seeking to vary the height development standard pursuant to cl 4.6 of LEP 2012. Having found a breach of the height development standard, in the absence of such a variation request I am unable to reach the states of satisfaction required by cl 4.6 to grant consent notwithstanding the variation.
Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, there is no power to grant consent to a development application which does not comply with the height control in cl 4.3 of the LEP 2012 and the application must fail.
Given this finding there is no utility in making a determination on the remaining issues in dispute between the parties.

Costs

As noted at [2], during the course of the hearing the Applicant sought to amend their development application. The Respondent did not oppose the grant of leave, but submitted that the amendment to the development application, was more than minor, triggering the obligation upon the Court to order payment of council's costs thrown away pursuant to s 8.15(3) the EPA Act.
Section 8.15(3) the EPA Act provides as follows: (3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which s 34AA of the Land and Environment Court Act 1979 applies.
The preceding section is of essentially the same terms as the previous s 97B(1) and (2) of the EPA Act. In Cachia v Manly Council (No 2) [2009] NSWLEC 1107, the Senior Commissioner pointed out that for s 97B to be of effect, two steps are necessary: "Firstly, that the Court allows the applicant to file an amended development application. Secondly, that the amended development application not constitute 'a minor amendment'." (at [3])
The first test was met during the proceedings by the grant of leave. In relation to the second step, I accept the agreed submission of the parties that the amendments sought by the Applicant do not constitute a minor amendment. The Applicant is to pay the Respondent's costs thrown away as a consequence of the amendments pursuant to s 8.15(3) of the EPA Act as agreed or assessed.

Orders

The Court orders that: 1. The Applicant is to pay the Respondent's costs "thrown away" as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The appeal is dismissed. 3. Development Application DA 0547/19 for the demolition of existing structures and construction of a three storey shop top housing development at 197 Windsor Street, Richmond is refused. 4. The exhibits are returned with the exception of Exhibits A, J and 8.

Commissioner of the Court 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: 05 May 2021

(2019) 243 LGERA 338

(2018) 236 LGERA 256

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