Oshry v Woollahra Municipal Council

Pre-conditions to the grant of consent

1. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, a consent authority must not grant consent to a development unless it has considered whether the site is contaminated, and if the land is contaminated, is satisfied that the site is suitable in its contaminated site (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out. I accept the Council's submission that the site has been used for residential uses for many decades and there are no known historic land uses which would require further investigation or deem the site unsuitable for the proposal.
2. The site is zoned R2 Low Density Residential pursuant to Woollahra Local Environmental Plan 2014 (LEP 2014) and the proposal is permissible with consent. The objectives of the zone, to which regard must be had, 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. • To provide for development that is compatible with the character and amenity of the surrounding neighbourhood. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. • To ensure development conserves and enhances tree canopy cover.

Contravention of the floor space ratio development standard

1. The proposal has a floor space ratio (FSR) of 0.54:1. The FSR development standard for the site is 0.5:1 pursuant to cl 4.4E of LEP 2014. The objectives of the FSR development standard, under subcl 4.4E(1) of LEP 2014, are: (a) to ensure the bulk and scale of development is compatible with the desired future character of the area, (b) to minimise adverse environmental effects on the use or enjoyment of adjoining properties and the public domain, (c) to ensure development makes adequate provision for deep soil planting, tree canopy cover and private open space.
2. The applicant provided an amended written request addressing the amended proposal and seeking to justify the contravention of the FSR development standard on 3 December 2024.
3. Clause 4.6(3) 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(3). The consent authority, or the Court on appeal, must be satisfied that the applicant has adequately addressed the matters required to be addressed by cl 4.6(3), (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

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

1. 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]).
2. 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; and 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).
3. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).
4. The applicant's written request justifies the contravention of the FSR development standard on the bases that compliance is unreasonable or unnecessary because the numerical breach is minor, and a subterranean storage area contributes to the gross floor area (GFA) of the existing dwelling, without resulting in any visual bulk. Therefore, the bulk and scale of the proposal is compatible with the desired low density residential character of the locality.
5. The grounds relied on by the applicant in the written request under cl 4.6(3)(b) 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]).
6. I am satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied that justifying the aspect of the development that contravenes the development standard as being consistent with the desired character of the locality as some of the numerical GFA is below ground level can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].
7. I am satisfied, for the reasons set out in the applicant's written request, that the proposal is consistent with the objectives of the FSR development standard.

Conclusion

1. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 26 November 2024 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 DA326/2023/1 for alterations and additions to the existing dwelling house, at 7 Belah Gardens Vaucluse, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

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