Para-ere Holdings Pty Ltd v Northern Beaches Council

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 proposal is in the public interest because it is consistent with the height of buildings development standard objectives and the zone objectives, for the reasons set out in the request.

Contravention of the FSR development standard

1. The existing building on the site has a FSR of 1.71:1. The FSR development standard is 0.75:1. The proposal has a FSR of 1.42:1.
2. The applicant provided a written request seeking to justify the contravention of the FSR development standard prepared by Boston Blyth Fleming Town Planners and dated 28 February 2024.

The applicant's written request to contravene the height of buildings development standard

1. The applicant's written request justifies the contravention of the FSR development standard on the bases that compliance is unreasonable or unnecessary because the proposal is consistent with the urban form of the context of Raglan Street, where the buildings create a street wall, built to the side boundaries. The proposal is responsive to the massing and form of surrounding development and a high level of internal amenity is achieved.
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).

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

1. I am satisfied that the proposal is in the public interest because it is consistent with the FSR development standard objectives and the zone objectives, for the reasons set out in the request.

Conclusion

1. I have considered the submissions made by the Council in the Jurisdictional Note filed with the Court on 18 March 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 applicant is to pay the respondent's costs in the sum of $4,000, under s.8.15(3) of the Environmental Planning and Assessment Act 1979, within 28 days of the date of these Orders. 2. The appeal is upheld. 3. Development Application No. 2022/2256, as amended, for demolition works and construction of a mixed use development with basement car parking, on land legally described as Lot 100 in DP1009880 and known as 22 Raglan Street, Manly, NSW, 2095, is determined by the grant of development consent, subject to the conditions at Annexure A. Susan O'Neill Commissioner of the Court

Annexure A 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: 28 March 2024

Contravention of the height of buildings development standard

1. The height of buildings development standard for the site is 11m. The lift overrun exceeds the maximum height by approximately 1m.
2. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by Boston Blyth Fleming Town Planners and dated 28 February 2024.
3. Clause 4.6(4) of LEP 2013 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.

1. 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 2013 (Initial Action at [29]).

The applicant's written request to contravene the height of buildings 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

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;

(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).

1. 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]).
2. The applicant's written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the breach is minor and inconsequential in terms of streetscape and residential amenity outcomes. The proposal is consistent with the three-storey street wall and the lift overrun is not visible when the façade is viewed from the street.
3. 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]).
4. 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).

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 proposal is in the public interest because it is consistent with the height of buildings development standard objectives and the zone objectives, for the reasons set out in the request.

1. The existing building on the site has a FSR of 1.71:1. The FSR development standard is 0.75:1. The proposal has a FSR of 1.42:1.
2. The applicant provided a written request seeking to justify the contravention of the FSR development standard prepared by Boston Blyth Fleming Town Planners and dated 28 February 2024.

The applicant's written request to contravene the height of buildings development standard

1. The applicant's written request justifies the contravention of the FSR development standard on the bases that compliance is unreasonable or unnecessary because the proposal is consistent with the urban form of the context of Raglan Street, where the buildings create a street wall, built to the side boundaries. The proposal is responsive to the massing and form of surrounding development and a high level of internal amenity is achieved.
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).

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

1. I am satisfied that the proposal is in the public interest because it is consistent with the FSR development standard objectives and the zone objectives, for the reasons set out in the request.

1. I have considered the submissions made by the Council in the Jurisdictional Note filed with the Court on 18 March 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.

(1) The applicant is to pay the respondent's costs in the sum of $4,000, under s.8.15(3) of the Environmental Planning and Assessment Act 1979, within 28 days of the date of these Orders.

(2) The appeal is upheld.

(3) Development Application No. 2022/2256, as amended, for demolition works and construction of a mixed use development with basement car parking, on land legally described as Lot 100 in DP1009880 and known as 22 Raglan Street, Manly, NSW, 2095, is determined by the grant of development consent, subject to the conditions at Annexure A.

Annexure A