Red Packet Investments Pty Ltd v Blue Mountains City Council

Environmental Planning and Assessment Act 1979

1. The objects of the EP&A Act are provided in s 1.3 as follows: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment.
2. Section 4.15(3A) of the EP&A Act provides as follows: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application.

Environmental Planning and Assessment Regulation 2000

1. The following provisions of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation) are of relevance in this appeal: 1. clause 49(1), which requires that, inter alia, a development application must be made by an owner of the land that is the subject of the application or with the consent of the owner of the land; 2. clause 77(1), which concerns notification of development applications as follows: (1) As soon as practicable after a development application is lodged with the consent authority, the consent authority must - (a) publish notice of the application on the consent authority's website, and (b) give notice of the application to - (i) the public authorities (other than relevant concurrence authorities or approval bodies) that, in the opinion of the consent authority, may have an interest in the determination of the application, and (ii) in the case of a development application other than designated development - the persons that, in the opinion of the consent authority, own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development).

Blue Mountains Local Environmental Plan 2015

1. Under the provisions of BMLEP15 the Subject Sites are zoned as a deferred matter, and as a consequence of cl 1.3(1A): 1. the provisions of BMLEP15 do not apply to development on the Subject Sites; and 2. development on the Subject Sites is subject to the provisions of BMLEP.

Blue Mountains Local Environmental Plan 2005

1. The provisions of BMLEP apply to the Subject Sites and the following provisions are of particular relevance to the determination of the development applications that are the subject of the appeals: 1. clause 8 of BMLEP identifies: 1. under subcl (2) the land use zones applicable to land subject to BMLEP, including the Living - Conservation zoning which applies to the Subject Sites; 2. under subcl (7) a series of protected area types that can apply to land to which BMLEP applies, and in relation to which the Subject Sites include at various points land identified as protected area type 7(a) being areas with a slope constraint; 1. clause 9, which identifies matters requiring consideration prior to the granting of development consent, as follows: Before granting consent to the carrying out of any development on land to which this plan applies, the consent authority is to be satisfied that the development - (a) is consistent with the aim of this plan and the principles and practices of ecologically sustainable development, and (b) complies with the principal objectives of the plan that are relevant to the development, and (c) complies with the locality management provisions within Part 2 that apply to the land, and (d) complies with the assessment requirements and provisions within Part 3 that are relevant to the development, and (e) complies with the development provisions within Part 4 that are relevant to the development. 1. clause 9A, which was added to BMLEP through an amendment o the plan and which is effective from 1 February 2020, which concerns exceptions to development standards, and which provides: (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 the Environmental Protection - Private zone, Environmental Protection - Open Space zone or Living - Bushland Conservation zone 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. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following - (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 90(9) (which relates to the area of a development space within the Living - Bushland Conservation zone), (d) the provisions of Schedule 1 that relate to "site coverage" or "development density" and apply to development of land within the Village - Housing zone. 1. clause 10, which states that the aim of BMLEP is: The aim of this plan is to provide a comprehensive and explicit framework for the development of land within the City, as the "City within a World Heritage National Park", in a manner that is consistent with and promotes the principles and practices of ecologically sustainable development. 1. clause 11 which defines the term ecologically sustainable development as: In this plan, ecologically sustainable development means development that improves the quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends. 1. clause 12, which provides the objectives of BMLEP, and in relation to which the Parties identified the following as of particular relevance in this appeal: (g) To limit exposure to bush fire hazards and to ensure that development of bush fire prone land incorporates effective measures that protect human life, property and highly valued environmental and other assets from bush fire, without unacceptable environmental impacts. (h) To identify and retain the diverse built and landscape elements that contribute to the character and image of the Blue Mountains. (i) To promote the provision of accessible, diverse and affordable housing options to cater for the changing housing needs of the community. 1. clause 13, concerning general locality management, which relevantly provides: (1) Consent shall not be granted to the carrying out of any development on land to which this plan applies unless - (a) the development complies with the zone objectives within Division 2 (Zone objectives) that apply to the land and that are relevant to the development, and (b) the development proposed to be carried out is permissible within the zone applying to the land in accordance with Division 3 (Permissibility of land use). 1. clause 15, concerning locality management within living zones, and which, inter alia, requires under subcl (2) that: (2) Consent shall not be granted to development within the Living - Conservation zone or to development within roads shown uncoloured on the Map and adjoining the Living - Conservation zone unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified within Part 2 of Schedule 2, and complies with those provisions. 1. clause 23, which provides the objectives for the Living - Conservation zone applicable to the Subject Sites, which are: (a) To retain and enhance the character of residential areas that are formed by larger allotments and single dwelling houses within a prominent traditional garden setting. (b) To enhance the landscape character and setting along roads of heritage significance where the road forms a visually significant entrance to a village or a linkage/pathway between major visitor destinations. (c) To ensure development, including development within adjoining road reserves, retains the prominence of landscape elements and traditional garden settings. (d) To ensure that established gardens are retained or landscape settings are re-established as part of any development of land, including development involving major alterations and additions. (e) To allow for a limited range of non-residential land uses where these are conducted in association with a predominantly residential land use and are consistent with the retention of a residential character based on a landscape or open space setting. 1. pursuant to the provisions of cl 15 of BMLEP (see above at [(8)]), consent cannot be granted to any development proposed to be carried out on land zoned Living - Conservation unless: 1. it has been assessed in accordance with the provisions specified within Part 2 of Schedule 2 of BMLEP; and 2. the proposed development complies with those provisions, which, relevantly in relation to the current appeals, include: 1. Division 1 (Building Envelope) cl 1(1), concerning building height which establishes that any proposed development on the Subject Sites must comply with the following height of building development standards that apply to buildings within the Living - Conservation zone (not within a Protected Area - Escarpment Area): • maximum height of building - 6.5m • maximum height at eaves - 4.5m 1. Division 1 (Building Envelope) cl 1(2), which provides that: Consent may be granted for a building that does not comply with subclause (1) and that is not within a Protected Area - Escarpment Area, but only where the consent authority is satisfied that - (a) the building will retain the prominence of the landscape setting and will not protrude above the existing tree canopy of vegetation adjacent to the building or above adjacent buildings, and (b) the building incorporates a design that minimises its apparent bulk when viewed from a public road, and (c) for a building within a Protected Area - Period Housing Area, the roof form and pitch are consistent with the predominant form of traditional housing stock within the surrounding area, and (d) buildings in the immediate vicinity in the Living - Conservation zone have a 2 storey residential character, and (e) the building does not exceed a maximum building height of 8 metres or a maximum height at eaves of 6.5 metres. 1. Division 1 (Building Envelope) cl 2(2) concerning controls in relation to setbacks other than in relation to the front setback which provides as follows: (a) For any building that has a street frontage on an allotment with a width of less than 20 metres, the width of any building across the allotment may be up to 75 per cent of the greatest width of the allotment at any one point. (b) For any building that has a street frontage on an allotment with a width of 20 metres or more, but less than 25 metres, the width of any building across the allotment may be up to 15 metres. (c) For any building that has a street frontage on an allotment with a width of 25 metres or more, the width of any building across the allotment may be up to 60 per cent of the greatest width of the allotment at any one point. (d) The minimum setback of a building or carport from the side or rear boundary of the allotment is 1 metre. (e) Notwithstanding paragraph (d), the minimum setback from the side boundary does not apply to minor additions and alterations to a building where this - (i) incorporates an extension of an existing external wall along the line projected by that wall, and (ii) does not decrease the closest distance of the building to the side boundary. (f) Notwithstanding any other provisions of this clause, the location of buildings on an allotment is to ensure that - (i) the bulk and scale of development is consistent with the existing streetscape of the surrounding area and promotes a prominent landscape setting for dwellings, and (ii) overshadowing of adjoining buildings and impact on solar access to the living areas and private open space of those buildings is minimised, and (iii) the design and location of the buildings respond effectively to individual site constraints and minimise site disturbance and clearing of vegetation. 1. Division 1 (Building Envelope) subcll 3(2) and 3(4) which provide that: (2) For any allotment having an area of 1,000 square metres or greater, the maximum site cover for buildings, including buildings ancillary to the main building (but excluding water tanks, unenclosed areas of spaced decking and swimming pools), is - (a) 300 square metres, and (b) an additional amount equivalent to 10 per cent of the amount by which the site area exceeds 1,000 square metres, but not exceeding 100 square metres. (4) The minimum area to be retained as soft, pervious or landscaped areas (excluding hard surfaces except for water tanks, unenclosed areas of spaced decking and swimming pools) is 60 per cent of the total allotment area. 1. Division 2 cl 1 in relation to retaining character within the Living Conservation zone, and which provides that: (1) Consent shall not be granted to development within the Living - Conservation zone unless the consent authority has considered a detailed assessment of character. (2) A detailed assessment of character prepared to comply with subclause (1) shall include the following - (a) an assessment of photographs (or illustrations, models or the like) of any existing buildings, natural features and vegetation on the site, (b) an assessment of photographs (or illustrations, models or the like) of the context of the site, including buildings and vegetation on adjoining and adjacent sites that contribute to the character of the locality, (c) a demonstration of how the proposed development is consistent with and enhances the established character of the surrounding residential area in regard to - (i) scale and massing of proposed buildings, and (ii) external finishes of proposed buildings, and (iii) landscaping and retention of vegetation, and (iv) building form, including roof pitch and size and location of windows, and (v) location of any buildings on the subject and adjoining allotments. 1. the BMLEP Dictionary which includes the following definitions: 1. building height means the distance measured in metres vertically from the highest point of the roof to the finished ground level immediately below that point; 2. height at eaves means the distance in metres measured vertically from any point on the eaves, gutter line or equivalent building element to the finished ground level immediately below that point; 3. slope means the gradient of the natural ground level, being the vertical height divided by the horizontal distance expressed as a percentage. The slope of the land is to be established by measuring the distance between 1 metre contour intervals as shown on a detailed contour survey plan of the land concerned that plots any rock outcrops on the land as well as other features.

State Environmental Planning Policy No 1 - Development Standards

1. State Environmental Planning Policy No 1 - Development Standards (SEPP1) was enacted to provide flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be considered unreasonable or unnecessary, or where their application would hinder the attainment of the objectives of those standards.
2. The provisions of SEPP1, now repealed, continue to apply to the Applicant's development applications for 54 and 56 Wentworth Street, as a consequence of the application of the version of BMLEP in force until 31 January 2020.
3. Clause 3 of SEPP1 provides that its objectives are: This Policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act. 1. In relation to this, the relevant provisions of subss 5(1)(i) and (ii) of the EP&A Act to which cl 3 of SEPP1 refers, and as that Act applied to SEPP1, were: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and co-ordination of the orderly and economic use and development of land.
4. Clause 6 of SEPP1 states that: Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection.
5. Clause 7 of SEPP1 provides that: Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6.
6. Clause 8 of SEPP1 provides that: The matters which shall be taken into consideration in deciding whether concurrence should be granted are: (a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument.

State Environmental Planning Policy No 55 - Remediation of Land

1. Clause 7 of SEPP 55 requires: 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is - (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital - land - (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).
2. As noted above at [12(2)], the Applicant has confirmed, and the Respondent agrees, that, because the Subject Sites have only been used for residential purposes, there is no risk of contamination of the Subject Sites and they are suitable for their proposed on-going residential use.

Better Living Development Control Plan 2005

1. Development on the Subject Sites is also subject to the provisions of the Better Living Development Control Plan 2005 (BLDCP), and the following provisions of that document are relevant in relation to the development applications that are under consideration in these appeals: 1. Part C2 concerning streetscape and character which: 1. states that streetscape is the term given to the collective appearance of all buildings, their curtilage, footpaths and gardens along a street. The streetscape gives a place its visual identity; it plays an important role in facilitating interaction between residents and creating a community; 2. directs that proponents of developments should enhance the quality of the street, understand the character of the area and design developments or alterations sympathetically. New building work should look like they belong to the neighbourhood; 3. includes performance criteria that all development must contribute to the streetscape and landscape character of the locality or precinct by: 1. being complementary to existing development within the neighbourhood; and 2. integrating with the existing buildings and landscaping of the street; 1. Part C2 which also concerns built form, and which: 1. states that the built form refers to the design and fabric of development in a local area. It relates to all built structures including dwellings, garages and fencing. It reveals changing construction methods, styles / trends and the availability of materials from various periods; 2. directs that developments should: 1. contribute to the built character of a local area by exhibiting built elements consistent with that of adjacent and surrounding development, and should consider: • Roof pitch and form including use of hips and/or gables. • The use and type of verandahs, porches and awnings. • Scale and proportion (vertical to horizontal) of windows. • Type and blend of external finishes of both the roof and walls. • The presence and style of front fencing. • Presence and type of car accommodation. • The location and type of car parking spaces. 1. creating a sympathetic building design and additions to fit in with the streetscape does not mean that neighbouring designs must be imitated. It implies being conscious of the area's natural environment, heritage significance, density, style, social and cultural mix; 2. use characteristic attributes (for example building height, street setback, form and materials) to compose innovative design solutions; 1. Part C2 which further concerns plans and documentation, and which provides that: 1. a detailed assessment of character is required where a proposed development is within a 'Protected Area - Period Housing Area' or a 'Living Conservation' zone; 2. the detailed character assessment should include a photo assessment (or illustrations, models or the like) of any existing buildings, natural features and vegetation on the site and on adjoining sites; 1. Part C5 which, inter alia, concerns visual amenity, and which: 1. states that visual amenity includes a number of factors ranging from maintaining or sharing a field of view to maximising privacy both within and between developments; 2. directs that developments should be designed so that: 1. site buildings ensure maximum privacy for the occupants, both within the dwelling and within any private open space areas; 2. windows are positioned to avoid direct and close views into the windows, balconies or private open space of adjoining dwellings and accommodation suites or provide adequate separation between dwellings; 3. private open space is designed to be located to take advantage of any significant outlook and natural features of the site. 1. Part C5 which also concerns solar amenity, and which: 1. states that site layout and building design can reduce winter heat loss, reduce the impact of summer afternoon sun and make use of solar energy 2. directs that proponents of new developments should: 1. ensure that no structure unduly restricts solar access to an adjoining allotment or dwelling; and 2. consider the location of existing vegetation on the site, as vegetation can also have a significant impact on solar access 1. requires that shadow diagrams be provided where there is a potential to overshadow an adjoining property. 1. Part D1 which provides standards for development, and which, inter alia, concerns aspects of solar amenity including that: 1. development must be located so that solar access to at least 50% of the private open space area is achieved for a minimum of 3 hours on the site, between the hours of 9am to 3pm on 21st June (D1.11.2); 2. a minimum of 2 hours solar access is required to outdoor clothes drying areas on 21st June (D1.11.3); and 3. development must be designed and located so that solar access to the living areas (excludes bedrooms, bathrooms and utility areas) and private open space areas of adjoining properties is not reduced to less than 3 hours between 9am and 3pm on 21st June (D1.11.4).

Contentions

1. The remaining contentions in the Applicant's appeals were noted above (at [15]), and require resolution of the following questions: 1. are the Applicant's written requests seeking to vary the HoB and height at eaves development standards applicable to the Subject Sites at 52, 54 and 56 Wentworth Street well founded? 2. is the Applicant's written request to vary the building width development standard applicable to the Subject Site at 56 Wentworth Street well founded? 3. is the Applicant's written request to vary the minimum pervious area of landscaping development standard applicable to the Subject Site at 56 Wentworth Street well founded? 4. are the Applicant's Proposed Developments consistent with the objectives of the Subject Sites' Living - Conservation zoning? 5. is the excavation required for the construction of the proposed dwellings at 52 and 54 Wentworth Street consistent with the slope constraints identified in BMLEP on those Subject Sites?
2. The Court was assisted in its consideration of these five questions by the joint reporting and oral evidence of the expert town planners: 1. Mr Lee Kosnetter, for the Applicant; and 2. Mr Robert Walker, for the Respondent,

1. Are the Applicant's written requests seeking to vary the HoB and height at eaves development standards applicable to the Subject Sites at 52, 54 and 56 Wentworth Street well founded??

Overview

1. The Applicant has provided written requests to vary the HoB and height at eaves development standards applicable to the proposed developments at 52 Wentworth Street pursuant to cl 9A of BMLEP, and for 54 and 56 Wentworth Street pursuant to the provisions of SEPP1 (see above at [20(3)]).
2. For reasons that I detail below, I have found that the Applicant's written requests to vary the HoB and height at eaves development standards on each of the three Subject Sites are not well founded.
3. While the assessment of each written request is, necessarily, somewhat lengthy, I am able to provide the following overview of my reasons for my findings as the Applicant's requests each adopt a common approach in addressing the provisions of cl 9A of BMLEP, in relation to the proposed development at 52 Wentworth Street, and the provisions of SEPP1, in relation to the proposed developments at 54 and 56 Wentworth Street: 1. each of the written requests has not, in my assessment, completed the statutory task required of the Applicant, under both cl 9A of BMLEP and SEPP1, to satisfactorily demonstrate that compliance with the objectives of the standard is unreasonable or unnecessary in the particular circumstances of each proposed development, as none of the requests correctly identifies the underlying objectives of the applicable development standard against which the test is to be undertaken; 2. in relation to the request concerning the proposed development on 52 Wentworth Street, it also does not identify sufficient environmental planning grounds to justify the breach of the development standard as required under cl 9A(3)(b) because the grounds proffered by the Applicant do not focus on the aspect or element of the proposed development that contravenes the development standard, but rather focus on the proposed development as a whole; 3. in relation to the proposed developments on 54 and 56 Wentworth Street, the Applicant's written request to vary the HoB and height at eaves development standards do not satisfactorily address the manner in which compliance with the development standards may hinder the attainment of the objectives of the EP&A Act, applicable in relation to SEPP1, as referred to in cl 3 of SEPP1.
4. As a consequence of these findings, I have concluded that each of Applicant's appeals in relation to its proposed developments at 52, 54 and 56 Wentworth Street, Blackheath should be determined by way of refusal and the appeals dismissed.
5. I have also given consideration to the Applicant's further written requests to vary the width of building and pervious landscape area development standards in relation to its proposed development at 56 Wentworth Street, and have also concluded that these are not well founded, providing a further basis for determining the application by refusal and dismissing that appeal.
6. I will now discuss the basis for these conclusions in more detail.

Introduction to detailed consideration of written requests to vary the HoB and height at eaves development standards

1. As identified in Schedule 2, Part 2, Division 1 subcl 1(1) of BMLEP (see above at [20(10)(b)(i)]) development on the Subject Sites is subject to a maximum HoB development standard of 6.5m, and a maximum height at eaves development standard of 4.5m. For simplicity, I will refer to these development standards in the judgment as those that apply under subcl 1(1).
2. However, under the provisions of Schedule 2, Part 2, Division 1 subcl 1(2) of BMLEP (see above at [20(10)(b)(ii)]), consent may be granted for a building that does not comply with the development standards in subcl 1(1), and that is not within a Protected Area - Escarpment Area, but only where the consent authority is satisfied that: 1. the building will retain the prominence of the landscape setting and will not protrude above the existing tree canopy of vegetation adjacent to the building or above adjacent buildings; and 2. the building incorporates a design that minimises its apparent bulk when viewed from a public road; and 3. for a building within a Protected Area - Period Housing Area, the roof form and pitch are consistent with the predominant form of traditional housing stock within the surrounding area; and 4. buildings in the immediate vicinity in the Living - Conservation zone have a 2 storey residential character; and 5. the building does not exceed a maximum building height of 8 metres or a maximum height at eaves of 6.5 metres.
3. Again, for simplicity, I will refer to these development standards in the judgment as the development standards under subcl 1(2).
4. The Applicant has stated that the heights of each of its Proposed Developments exceeds the HoB and height at eaves development standards applicable to each of the Subject Sites, under both subcll 1(1) and 1(2), as follows: 1. the Proposed Development at 52 Wentworth Street has a proposed maximum building height of 8.15m and a maximum height of eaves of 7.15m; and 2. the Proposed Development at 54 Wentworth Street has a proposed maximum building height of 8.2m and a maximum height of eaves of 7.2m; and 3. the Proposed Development at 56 Wentworth Street has a proposed maximum building height of 7.2m and a maximum height of eaves of 6.4m.
5. The Applicant's development applications for 52, 54 and 56 Wentworth Street were lodged on the following dates: 1. 12 February 2020 for Development Application No. X/76/2020 in relation to the Proposed Development at 52 Wentworth Street, Blackheath, also identified as Lot 201 DP1194280 (Subject Site 1); and 2. 15 January 2020 for Development Application No. X/13/2020 in relation to the Proposed Development at 54 Wentworth Street, Blackheath, also identified as Lot 200 DP 1194280 (Subject Site 2); 3. 7 August 2019 for Development Application No. X/643/2019 in relation to the Proposed Development at 56 Wentworth Street, Blackheath, also identified as Lot 202 DP 1194280 (Subject Site 3).
6. As a consequence of their differing dates of lodgement, the Proposed Developments on 52, 54 and 56 Wentworth Street are subject to one of two versions of BMLEP, which differ in respect to how an applicant might seek to justify the contravention of a development standard applicable to the Subject Sites, as follows: 1. Development Application No. X/76/2020 which was lodged 12 February 2020 in relation to 52 Wentworth Street, is subject to the provisions of cl 9A of BMLEP (see above at [20(3)]), introduced to BMLEP from 1 February 2020, in relation to exceptions to development standards; 2. Development Application No. X/13/2020 which was lodge on 15 January 2020 in relation to the Proposed Development at 54 Wentworth Street, Blackheath, prior to the introduction of cl 9A to BMLEP, and so is subject to the provisions of SEPP1 (see above at [22]) as the basis for consideration of the Applicant's written request seeking flexibility in the application of development standards; and 3. Development Application No. X/643/2019, which was lodged on 9 August 2019 in relation to the Proposed Development at 56 Wentworth Street, Blackheath, prior to the introduction of cl 9A to BMLEP, and so is subject to the provisions of SEPP1 (see above at [22]) as the basis for consideration of the Applicant's written request seeking flexibility in the application of development standards.
7. The Applicant's written requests concerning its proposed developments on the lots at 52 and 54 Wentworth Street seek to vary the development standards applicable under either the lower height development standards of subcl 1(1) (see above at [20(10)(b)(i)]) or higher height development standards of subcl 1(2)(e) (see above at [20(10)(b)(ii)]).
8. The Applicant's written requests in relation to the lot at 56 Wentworth Street seeks to vary the development standards applicable under the lower height standards of subcl 1(1) only.
9. In order to establish whether the Applicant's written requests for 52 and 54 Wentworth Street are well founded, it is first necessary to confirm whether the development standards under subcl 1(1) or those under subcl 1(2)(e) apply to the Proposed Developments on 52 and 54 Wentworth Street.
10. I will then consider each of the written requests to vary these standards in relation to the proposed developments on 52, 54 and 56 Wentworth Street, in turn.

What are the HoB and height at eaves development standards applicable to the Proposed Developments at 52 and 54 Wentworth Street?

1. The provisions of subcl 1(2) provide that consent may be granted to a development which does not comply with the standards applicable under subcl 1(1), if the development satisfies each of the provisions of subcll 1(2)(a) and 1(2)(b) and 1(2)(c) and 1(2)(d) and 1(2)(e) (see above at [20(10)(b)(ii)]). It is clear from the text of subcl 1(2) that the provisions of each of these subclauses are cumulative. That is, if a proposed development does not comply with any one of the subclauses applicable to it, then the consent authority, or the Court on appeal, cannot grant consent on the basis of the provisions of subcl 1(2).
2. In effect, the provisions of subcl 1(2) offer a basis for a consent authority, or the Court on appeal, to grant consent through varying the development standards in subcl 1(1) but only if a proposed development satisfies each one of the five specific criteria in that subclause.
3. As identified above at [40], the proposed developments on 52 and 54 Wentworth Street both have a maximum HoB that exceeds 8m, and a maximum height at eaves that exceeds 6.5m. Consequently, neither of these proposed developments satisfies subcl 1(2)(e).
4. On that factual basis, and without requiring further consideration of the other provisions of subcl 1(2), the increased height standards provided by subcl 1(2) are not available to the proposed developments at 52 and 54 Wentworth Street, and the proposed developments on those Subject Sites are subject to the lower height development standards in subcl 1(1).
5. Further, as a consequence of my finding above (at [51]), the Applicant's written requests to vary the HoB and height at eaves development standards applicable to developments on 52 and 54 Wentworth Street must be considered against the development standards provided within subcl 1(1).
6. This task is undertaken below (at [60] and [93]) for the proposed developments on 52 and 54 Wentworth Street, respectively.
7. Notwithstanding the conclusion above (at [51] and [52]), for completeness, I have also considered the responsiveness of the proposed pevelopments at 52 and 54 Wentworth Street to the remaining provisions of subcl 1(2), and I have concluded that the proposed developments on 52 and 54 Wentworth Street also do not satisfy the provisions of subcll 1(2)(a), 1(2)(b), and 1(2)(d) for reasons provided below at [56], [57] and [58].
8. It is not necessary for me to consider the provisions of subcl 1(2)(c) as the proposed developments on 52 and 54 Wentworth Street are not located in a Protected Area - Period Housing Area.
9. Subclause 1(2)(a) requires that the proposed developments at 52 and 54 Wentworth Street retain the prominence of the landscape setting and will not protrude above the existing tree canopy of vegetation adjacent to the building or above adjacent buildings, and in relation to this: 1. Mr Kosnetter agreed during cross examination with the Respondent's submission that the maximum height of the proposed developments on both 52 and 54 Wentworth Street would extend above the height of adjacent building at 48 Wentworth Street; and 2. based on the evidence of Mr Kosnetter (above at [(1)]), I agree with, and accept, the submission of the Respondent that the proposed developments on 52 and 54 Wentworth Street would protrude above the adjacent building at 48 Wentworth Street, and so the provisions of subcl 1(2)(a) are not satisfied;
10. Subclause 1(2)(b) requires that the proposed developments on 52 and 54 Wentworth Street incorporate a design that minimises their apparent bulk when viewed from a public road, and Wentworth Street is a public road. In relation to this requirement: 1. Mr Kosnetter said in cross-examination that: 1. he agreed with the submission of the Respondent that: 1. an observer standing on Wentworth Street would see all of the proposed dwelling at 52 Wentworth Street from the front when looking up the driveway, including the full extent of proposed development's eastern elevation; and 2. the apparent bulk of the proposed building on 52 Wentworth Street had not been minimised when viewed from the front; 3. no analysis had been provided of the view of the proposed buildings on 52 and 54 Wentworth Street up the driveway; 1. notwithstanding his evidence above (at [(a)]), the building proposed for 52 Wentworth Street would step back at its upper level and included a modulated façade. He said that the view of it from the public road would be acceptable; 1. Mr Walker said that, in his opinion, the design of the proposed developments at 52 and 54 Wentworth Street did not minimise their apparent bulk, and did not satisfy the provisions of subcl 2(1)(b); 2. the Applicant submitted that there was nothing objectionable in the design of the proposed developments on 52 and 54 Wentworth Street, and that they represented appropriate design responses to challenging sites; 3. the Respondent submitted that the provisions of subcl 1(2)(b) would not be satisfied as the entire bulk of the proposed development at 52 Wentworth Street would be visible from Wentworth Street which is a public road; 4. having considered the evidence of the experts and the submissions of the Parties: 1. I agree with the submission of the Respondent, supported by the evidence of Mr Walker, and that of Mr Kosnetter, that the bulk of the proposed development on 52 Wentworth Street will be visible from Wentworth Street, which is a public road. As a consequence, I conclude that, as stated by the Respondent, the design of that proposed development does not minimise its apparent bulk from the perspective of Wentworth Street; 2. while the Applicant is not able to rely upon a view analysis of the proposed developments on 52 and 54 Wentworth Street from the lower street, I am able to conclude from the view of the Subject Sites which I undertook prior to the hearing that the proposed development at 54 Wentworth Street would also be visible, at least in part, looking up the driveway from Wentworth Street; 3. further, as the design of the proposed building on 54 Wentworth Street is, in essence, the same as that of the proposed building on 52 Wentworth Street, and as I have already concluded that the design of the building at 52 Wentworth does not minimise its apparent bulk when viewed from Wentworth Street, I am also satisfied that I can conclude that the design of the proposed development at 54 Wentworth Street also does not minimise its apparent bulk if it were to be viewed from the public road fronting the Subject Sites on Wentworth Street; 4. on the basis my conclusions above (at [(a)] and [(c)]), I am satisfied that the Proposed Developments at 52 and 54 Wentworth Street do not satisfy the provisions of subcl 1(2)(b);
11. Subclause 1(2)d) requires that buildings in the immediate vicinity in the Living - Conservation zone have a two storey residential character, and in relation to this: 1. the Court, along with the representatives of the Parties and their experts, undertook an inspection of: 1. dwellings in Wentworth Street in the immediately vicinity of the Subject Sites; and 2. dwellings within Kirkwood Street, which is the street at the rear, high side, of the lots at 52 and 54 Wentworth Street, and which the Applicant said should be considered in assessing the residential character in the immediate vicinity in the Living - Conservation zone; 1. during cross-examination at the hearing, Mr Kosnetter said that: 1. he agreed with the Respondent that: 1. there are 10 other buildings in the "immediate vicinity" of the Subject Sites on Wentworth Street; 2. two of the 10 buildings in the immediate vicinity of the Subject Sites on Wentworth Street had a two-storey form, those being the dwellings at 58 and 64 Wentworth Street; and 3. eight of the 10 buildings in the immediate vicinity of the Subject Sites on Wentworth Street have a single storey form; 4. that the buildings located at 159 to 167 Great Western Highway, which presented at their rear to Kirkwood Street, and which the Respondent said were single storey, were of a different character to the dwellings on Wentworth Street. 1. Mr Walker, in response to questions for the Applicant at the hearing, said that, in his opinion: 1. the dwelling at 64 Wentworth Street has a single storey residential character; 2. the dwellings at 159 to 167 Great Western Highway have a single storey character because: 1. these buildings have a functionally single storey character at their ground floor level on their high side presentation to the Great Western Highway, and 2. this single storey sits above a rear garage space located at a sub-floor level; 1. the dwellings at 10 and 12 Kirkwood Street have a single storey character; 2. the dwellings at 4 and 20 Kirkwood Street have a two-storey character; 3. the buildings in the immediate vicinity in the Living - Conservation zone have a predominantly single storey residential character; 1. the Applicant submitted that the presentation of the buildings of the Great Western Highway, with a single storey presentation to the street at ground level and with a second storey hiding behind and below that main street presentation, was: 1. a preferable built form that should be encouraged in the area; and 2. sufficient to demonstrate that buildings in the immediate vicinity of the Subject Site in the Living - Conservation zone have a two-storey residential character; 1. the Respondent submitted that: 1. the buildings that should be assessed as being located in the immediate vicinity in the Living - Conservation zone are those buildings located on Wentworth Street in the vicinity of the Subject Sites; 2. consistent with the evidence of Mr Walker and Mr Kosnetter (see above at [(3)(e)] and [(2)(a)(iii)]), the majority of the buildings on Wentworth Street in the immediate vicinity of the Subject Sites have a single storey residential character; 3. the buildings on Kirkwood Street addressing the Great Western Highway, have a rear presentation to Kirkwood Street at the rear of the Subject Sites, include a non-habitable spaces at their lower level, often as an open under-croft space used as a garage, and should not be considered as having a two-storey character; 4. for these reasons, the Proposed Developments at 52 and 54 Wentworth Street do not satisfy he provisions of subcl1(2)(d), because the buildings in the immediate vicinity of the Subject Site in the Living - Conservation zone do not have a two-storey residential character; 1. having considered the evidence of the experts and the submissions of the Parties, I have concluded that, consistent with the submissions of the Respondent, the buildings in the immediate vicinity of the Subject Sites in the Living - Conservation zone do not have a two-storey residential character, because: 1. based on the contradictory evidence of Mr Walker and Mr Kosnetter, it is not clear to me that the buildings on Kirkwood Street should be considered as being located in the vicinity of the Subject Site a front the Great Western Highway, and nor am I satisfied that they have a two-storey character; 2. I agree with the submission of the Respondent that a number of the buildings fronting the Great Western Highway, with their rear presentation to Kirkwood Street, and which the Applicant said were of two-storey character, had an unenclosed under-croft garage that should not be considered a storey for the purposes of characterising the build form of those structures; and 3. unlike the Kirkwood Street properties on which the Applicant relies for its characterisation of the built form character in of buildings in the vicinity of the Subject Sites, both experts agreed that the majority of the buildings on Wentworth Street, that were unquestionably in the immediate vicinity of the Subject Site, are of a single storey character, and in my assessment this is sufficient to establish that the Proposed Developments do not satisfy the provisions of subcl1(2)(d).
12. As a consequence of my considerations above (at [56], [57] and [58]), I conclude that, in addition to my reasons above (at [51]), the Applicant's Proposed Developments at 52 and 54 Wentworth Street are unable to access the exceptions to HoB and height at eaves developments standards provided within subcl 1(2)(e), and the Applicant's written requests to vary those standards should be assessed against the height development standards in subcl 1(1).

Is the Applicant's written request, prepared pursuant to cl 9A of BMLPE, to vary the HoB and height at eaves development standards applicable to proposed development at 52 Wentworth Street, well founded?

1. As noted above at [51], the Applicant's proposed development at 52 Wentworth Street is subject to the a maximum HoB development standard of 6.5m and maximum height at eaves development standard of 4.5m, as provided in subcl 1(1).
2. The Applicant's proposed development at 52 Wentworth Street is in breach of the applicable HoB and height of eaves developments as follows: 1. the proposed development has a proposed HoB of 8.2m which is a 1.7m, or 26.1%, exceedance of the development standard; 2. the proposed development has a proposed height of eaves of 7.2m which is a 2.7m, or 60%, exceedance of the development standard.
3. The provisions of cl 9A of BMLEP were provided above (at [20(3)]), and they reflect the provisions of cl 4.6 of the Standard Instrument - Principal Local Environmental Plan (Standard Instrument), which concerns the circumstances in which a consent authority might grant consent though the provision of flexibility in the application of development standards.
4. As is the case under cl 4.6 of the Standard Instrument, under cl 9A(3) of BMLEP a consent authority must not grant consent unless the consent authority has considered a written request from the applicant seeking to justify the contravention of the development standard by demonstrating: 1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and 2. that there are sufficient environmental planning grounds to justify contravening the standard. In addition, under cl 9A(4)(a)(ii) the consent authority must also be satisfied that: 1. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for the development within the zone in which the development is proposed to be carried out.
5. In assessing whether compliance with the standard is unreasonable and unnecessary, it is appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (referred to hereafter as Wehbe) in which his Honour identifies potential five pathways that could be applied to establish whether compliance is unreasonable or unnecessary. These are to establish that compliance with the development standard is unreasonable or unnecessary because: 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; 4. the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable; 5. "the zoning of particular land" was "unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary.
6. The Chief Judge also noted in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (at [22]) (referred to hereafter as Initial Action) that: "These five ways are not exhaustive of the ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary; they are merely the most commonly invoked ways. An applicant does not need to establish all of the ways. It may be sufficient to establish only one way, although if more ways are applicable, an applicant can demonstrate that compliance is unreasonable or unnecessary in more than one way."
7. The Applicant's written request asserts that compliance with the height of building and height at eaves development standards is unreasonable or unnecessary because the proposed development at 52 Wentworth Street achieves the objectives of the standard notwithstanding its non-compliance, which the first of the approaches identified by the Chief Judge in Wehbe.
8. In explaining this approach, Preston CJ also explained (at [43] of Wehbe) that: "43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served)."
9. The Applicant's written request notes that the HoB and height at eaves development standard applicable to the Subject Sites has no explicit objectives.
10. However, notwithstanding the absence of explicit objectives for these standards, the framers of the standard would have had reasons for setting the HoB development standard for the Subject Sites at 6.5m and the height at eaves development standard at 4.5m. These reasons would constitute underlying objectives to the standards.
11. In the absence of explicit objectives for these development standards, the task of the Applicant is to identify their underlying objectives in subcl 1(1) so that the statutory task established under cl 9A(3)(a) of BMLEP can be undertaken.
12. Subclause 1(2) provides an internal mechanism for the consent authority to vary the development standards in subcl 1(1). In providing this mechanism to vary the standards in subcl1(1) it is my assessment that the drafters of BMLEP identified within subcll 1(2)(a), (b), (c), and (d) some of the circumstances in which they considered compliance with the development standards in subcl 1(1) would be unreasonable and unnecessary. In so doing, they provided insight into at least some of the underlying objectives for the HoB and height at eaves development standards in subcl 1(1).
13. I have already found that I cannot be satisfied that the proposed development at 52 Wentworth Street would achieve the outcomes identified within subcll 1(2)(a) to 1(2)(d) (see above at [59]). Consequently, I am satisfied that the Proposed Development does not achieve any of the underlying objectives contained within those subclauses.
14. Notwithstanding the above, the Applicant's written request seeking to vary the HoB and height at eaves development standards applicable to the proposed development on 52 Wentworth Street does not identify nor consider any of those underlying objectives from subcl 1(2) in relation to the provisions of subcl 1(1).
15. However, it is also the fact that there must be further underlying objectives that provide the reasons for the development standards provided in subcl 1(1). This must be so because if there were no such further underlying objectives, there would be no purpose in the framers of BMLEP setting the development standards within subcl 1(1) and it would have been sufficient to simply set the development standards in subcl1(2).
16. The Applicant's task then is to identify those further underlying objectives of subcl 1(1) in order that the statutory task set under cl 9A(3)(a) can be completed.
17. The Applicant's written request to vary the HoB and height of eaves development standards applicable to development on 52 Wentworth Street states that an ordinary factor in dictating height limits is to "restrict the height for the purpose of bulk and scale". The Applicant's request then offers that the "purpose of bulk and scale" should constitute the "broad objective" for the purposes of undertaking the task required under cl 9A(3)(a) of establishing that compliance with the HoB and height at eaves development standards is unreasonable and unnecessary.
18. I have considered whether the Applicant's proposition that "the purpose of bulk and scale" provides an underlying objective of the type referred to above (at [75]) for the purposes of cl 9A(3)(a). I have concluded that it does not represent such an objective, and is simply a statement of fact, rather than an expression of purpose.
19. The bulk and scale of a building are established by the dimensions and form of the building. It is axiomatic that the height of a building or its height at eaves are factors contribute to the bulk and sale of a building. However, they are not, in my assessment, acceptable as expressions of purpose, and cannot be interpreted as representing an objective.
20. The purpose or reasons, and therefore the underlying objectives, for restricting the bulk and scale of a building, including its height dimensions, should relate to some aspect of its context. These might include, for example, the mitigation of potential view impacts on neighbours, the maintenance of solar access to an adjoining property, or precluding overlooking into an adjoining property in order to maintain privacy.
21. The Applicant's written request identifies no such underlying objective. When considered together with my finding above (at [72]) concerning the potential underlying objectives in subcl 1(2), I conclude that the Applicant's written request to vary the HoB and height at eaves development standard has not undertaken the statutory task established under cl 9A(3)(a) of BMLEP.
22. The provisions of cl 9A(3)(b) (see above at [20(3)]) also requires that the applicant's written request to vary a development standard demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard.
23. Within his judgment in the case of Initial Action, Preston CJ states: 1. (at [23]) "The adjectival phrase "environmental planning" is not defined but would rather refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act." 2. (at [24]) "The environmental planning grounds relied on in the written request under cl 4.6 must be "sufficient"" in two respects" and his Honour goes on to identify that these are: 1. "First, the environmental planning grounds advanced in the written request must be sufficient "to justify contravening the development standard". The focus of cl 4.6(3)(b) is on the aspect or element of the development that contravenes the development standard, not on the development as a whole, and why that contravention is justified on environmental planning grounds. The environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15]", and; 2. "Second, the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]".
24. Within the Applicant's written request, it states that the environmental planning grounds that would justify contravention of the HoB and height at eaves development standards applicable to the Subject Site at 52 Wentworth Street are as follows: 1. the variation facilitates the orderly and economic development of a recently subdivided parcel of land; 2. in order to fully utilise the amenity provided by the topography of the site a stepped building form is required; 3. the additional landscaping proposed as a component of the application provides certainty that the landscaping is an integral part of the holistic approach to the development, allowing it to contribute to the landscape setting of the locality; 4. the building will make a positive contribution to the diversity of building forms in this locality; 5. the height breach is at such a distance from the public road that it can only be viewed at extreme angles that separate its visual distance relationship to the streetscape; 6. the variation is necessary to facilitate the orderly and economic use and development of the land, being a stated object of the EP&A Act within s 1.3(c) of that Act. In particular, the Applicant says that the variation would allow for a building to provide levels that connect at the front and rear of the sloping block over two levels; 7. the variation is necessary to improve the design and amenity of the built form environment being a stated object of the EP&A Act within s 1.3(g) of that Act. In particular, the building and landscaping serve to soften the visual appearance of the site in a manner respectful of the topography and natural constraints of the site.
25. The Respondent submitted that the Court should not be satisfied that the Applicant's written request had demonstrated that there are sufficient environmental planning grounds to justify contravening the HoB and height at eaves development standards because the environmental planning grounds identified in the written request do not focus on the aspect or element of the development that contravenes the development standard, but rather focus on the development as a whole.
26. The Respondent added that this approach to addressing the provisions of cl 9A(3)(b) of BMELP does not accord with the correct approach identified by Preston CJ in Initial Action, and said that on that basis the Court would find that the Applicant's written request to vary the HoB and height at eaves development standards for its proposed development at 52 Wentworth Street was not well founded.
27. In response, the Applicant submitted the non-compliance of the proposed developments at 52, and 54, Wentworth Street were technical breaches of the relevant development standards, and the HoB and height at eaves breaches of the development standards represented, what it called, the "effective" height of the developments given their settings.
28. Having considered the environmental planning grounds identified in the Applicant's written request to vary the HoB and height at eaves development standards applicable to the Subject Site, I am not satisfied that these grounds justify the contraventions of those standards with the Proposed Development at 52 Wentworth Street.
29. Consistent with the submissions of the Respondent above (at [84]), I find that the environmental planning grounds proffered by the Applicant do not focus on the aspect or element of the development that contravenes the development standard, but rather they focus on the proposed development as a whole.
30. In my assessment, none of the proffered reasons justify the exceedances of the development standards in the circumstances of the proposed development.
31. In conclusion, I find that the Applicant's written request, prepared pursuant to the provisions of cl 9A of BMLEP, seeking to vary the HoB and height of eaves development standards applicable to the development on the Subject Site at 52 Wentworth Street, are not well founded because: 1. the request has not demonstrated that compliance with the HoB and height of eaves development standards is unreasonable or unnecessary in the circumstances of the proposed development for reasons provided above at [80]; 2. the environmental planning grounds identified in the request are insufficient to justify the exceedance of the development standards, for reasons provided above at [88];
32. As a consequence of my conclusion above at [90], I find that, as required under the provisions of cll 9A(4)(i) and (ii) I must not grant consent to the Applicant's proposed development at 52 Wentworth Street because: 1. the Applicant's written request has not adequately addressed the matters required to be demonstrated by subcl 9A(3) of BMLEP; and 2. the proposed development is not in the public interest because it is not consistent with the underlying objectives of the HoB and height at eaves development standard applicable to developments on 52 Wentworth Street.
33. For reasons provided above at [91], I find that the Applicant's appeal in relation to DA X/76/2020 for its proposed development on 52 Wentworth Street, Blackheath should be refused.

Is the Applicant's written request to vary the HoB and height at eaves development standards applicable to the proposed developments at 54 Wentworth Street, pursuant to the provisions of SEPP1 well founded?

1. As noted above at [51], and as was the case for its proposed development on the adjacent lot at 52 Wentworth Street, the Applicant's proposed development at 54 Wentworth Street is subject to a maximum HoB development standard of 6.5m and maximum height of eaves development standard of 4.5m, as provided in subcl 1(1).
2. Further, as was the case for the proposed development at 52 Wentworth Street, the Applicant's proposed development at 54 Wentworth Street is in breach of the applicable HoB and height at eaves development standards in the same quanta, as follows: 1. the proposed development has a proposed HoB of 8.2m which is a 1.7m, or 26.1%, exceedance of the development standard; 2. the proposed development has a proposed height at eaves of 7.2m which is a 2.7m, or 60%, exceedance of the development standard.
3. The Applicant has provided a written request to vary the HoB and height at eaves development standards applicable to the Subject Site at 54 Wentworth Street, pursuant to the provisions of SEPP1, which were identified above at [21] and following.
4. Preston CJ summarised the requirements for the Court's consideration of a request to vary a development standard under SEPP1 within his judgment in Wehbe (at [38] and following) as follows: 38 First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8. 39 Secondly, the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 "and is also"). The aims and objects of SEPP 1 set out in clause 3 are to provide "flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act". …… 40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection ….
5. The objects in subss 5(a)(i) and (ii) of the EP&A Act referred to above in Webhe (at [39]) are those identified above at [23(1)].
6. I have already identified above (at [64]), the approaches identified in Wehbe to establish that that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case.
7. The Applicant's written request to vary the HoB and height at eaves development standards applicable to the proposed development at 54 Wentworth Street adopts the identical approach as that provided by the Applicant in its request to vary the same standards in relation to its proposed development at 52 Wentworth Street.
8. That approach sought to demonstrate that compliance with that development standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding the non-compliance of the proposed development with development standard.
9. As I have noted above: 1. the HoB and height at eaves development standards applicable to both 52 and 54 Wentworth Street have no objectives; 2. the Applicant's written request to vary the HoB and height at eaves standards in relation to 52 Wentworth Street, prepared under cl 9A of BMLEP, is not well founded; 3. the reasons for my finding above at [(2)], included that the Applicant failed to complete successfully the statutory task required of it under cl 9A(3)(a) of BMLEP, which is the same task that must be completed by the Applicant pursuant to cl 7 of SEPP 1. That task is to establish, to the Court's satisfaction, that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case.
10. I have considered the Applicant's written request pursuant to the provisions of SEPP1 to vary the HoB and height at eaves development standards in relation to its proposed development at 54 Wentworth Street, and I find that it is not well founded because: 1. the Applicant's written request in relation to the Subject Site at 54 Wentworth Street has adopted the identical approach taken by the Applicant in its request to vary the same standards in relation to its proposed development at 52 Wentworth Street; 2. I have already found that the Applicant's written request in relation to 52 Wentworth Street failed to complete successfully the statutory task of satisfying me that compliance with the HoB and height at eaves development standards was unreasonable or unnecessary in the circumstances of the case; 3. for the same reasons identified above at [(1)] and [(2)], I find that the Applicant written request to vary the HoB and height of eaves development standards in relation to 54 Wentworth Street has not succeeded in completing the statutory task required under cl 7 of SEPP1, and I am not satisfied that compliance with the standards is unreasonable or unnecessary.
11. I have also not been able to form the opinion that granting of consent to that development application would be consistent with the aims of SEPP1, as required under the provisions of its cl 3, for the following reasons: 1. the Applicant's written submission in relation to the requirements of cl 3 of SEPP1 adopts the approach applied by it to satisfy the provisions of cl 9A(3)(b) in relation to its request to vary development standards in relation to the proposed development on the site at 52 Wentworth Street (see above at [83]); 2. I have already found that the approach adopted by the Applicant in relation to provisions of cl 9A(3)(b), concerning the sufficiency of environmental grounds required to justify non-compliance with the HoB and height at eaves development standards, does not achieve the required level of satisfaction; 3. if the Applicant seeks to rely on the same reasoning to demonstrate that its development application for 54 Wentworth Street, including its exceedance of the HoB and height of eaves development standards, is consistent with the aims of SEPP1, as set out in cl 3, including the objects specified in subss 5(a)(i) and (ii) of the EP&A Act, it would also not achieve that satisfaction for the same reasons as those identified above at [88].
12. Notwithstanding my findings above at [103], and while the Applicant has correctly identified that it is required to demonstrate that its development application for 54 Wentworth Street is consistent with the aims of SEPP1 as required under cl 3 of SEPP1, its written request does not address the detail of either of the objects in subss 5(a)(i) and (ii) of the EP&A Act, and so it has not succeeded in completing this requirement.
13. Further, as noted above (at [56], [57] and [58]), the Applicant's proposed development: 1. will not retain the prominence of built form in the landscape setting; 2. will protrude above the existing tree canopy of vegetation adjacent to the building or above adjacent buildings; 3. will not minimise the apparent bulk of the proposed development when viewed from Wentworth Street, which is a public road; 4. would have a two-storey built form that would not be consistent with the character of other buildings in its immediate vicinity in its Living - Conservation zoning, which have a predominantly single story character.
14. As a consequence of my findings above at [102], [103], [104], and [105], I have concluded that the Applicant's proposed development at 54 Wentworth Street: 1. would not encourage the proper development of natural and artificial resources in the village of Blackheath and would not promote a better environment; 2. is not consistent with the orderly and economic use and development of the Subject Site at 54 Wentworth Street; and 3. the Applicant's development application for 54 Wentworth Street is not consistent with the aims of SEPP1, as set out in clause 3, including the objects specified in section 5(a)(i) and (ii) of the EP&A Act.
15. As a consequence of my findings above at [106] I have concluded that: 1. the Applicant's written request to vary the HoB and height at eaves development standards applicable to development on the Subject Site at 54 Wentworth Street is not well founded; 2. because its written request is not well founded, and as the Applicant's proposed development at 52 Wentworth Street exceeds the applicable height and height of eaves development standards, the Applicant's development application DA X/13/2020 cannot be approved, and 3. the appeal in relation to the Respondent's refusal of development application X/13/2020 should be dismissed.

Is the Applicant's written request to vary the height of building and height of eaves standards applicable to the Subject Site at 56 Wentworth Street well founded?

1. The Applicant's proposed development at 56 Wentworth Street is subject to a maximum HoB development standard of 6.5m and maximum height of eaves development standard of 4.5m, as provided in subcl1(1).
2. The Applicant has provided a written request to vary the HoB and height at eaves development standards applicable to the proposed development at 56 Wentworth St. The request has been prepared pursuant to the provisions of SEPP1, which were identified above at [21] and following, and the requirements related to which, as outlined by Preston CJ in Wehbe, were identified above at [96].
3. The objects in s 5(a)(i) and (ii) of the EP&A Act referred to above in Webhe (at [39]) are those identified above at [23(1)].
4. The Applicant's written request states that it seeks to vary those development standards for the proposed development at 56 Wentworth Street as follows: 1. the proposed HoB is stated as 7.4 m, and the identified variation sought is said to be 1.1m or 16.9% of the standard; 2. the proposed height of eaves is stated to be 6.4m and the identified variation sought is said to be 1.9m or 42.2%.
5. At the hearing, and in response to questions from the Respondent, Mr Kosnetter agreed that the correct height at eaves of the Applicant's proposed development at 56 Wentworth Street is 7.4m, which would represent a departure from the height at eaves development standard of 2.9m or 64%.
6. The Applicant's written request states, in the context of seeking to demonstrate that compliance with the standards is unreasonable or unnecessary, that "the variation is minor and inconsequential in the context of the surrounding properties and landscape setting of the locality…".
7. I disagree with this statement.
8. The fact that the Applicant's written request has misstated the variation sought to the height at eaves development standard by such a significant quantum, and that the proposed development's actual variation from the development standard is 64%, which is, in my estimation, significant, is a fundamental flaw in the request. This flaw undermines the Applicant's rationale within its written request upon which it relies to justify the variation to the standard. It is sufficient, in my assessment, to find that the request is not well founded.
9. However, the written request is also not well founded in my assessment for additional reasons that I will now address.
10. I have previously identified above (at [64]) the approaches identified by Preston CJ in Wehbe to establish that that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case.
11. The Applicant's written request to vary the HoB and height at eaves development standards applicable to the Subject Site at 56 Wentworth Street adopts the identical approach as it did in its request to vary the same standards in relation to its proposed development at 54 Wentworth Street. That approach seeks to demonstrate that compliance with that development standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding the non-compliance.
12. As I have noted above: 1. the HoB and height at eaves development standards applicable to 52, 54 and 56 Wentworth Street have no objectives; 2. I have already found that the Applicant's written request to vary the HoB and height at eaves standards in relation to 54 Wentworth Street, prepared pursuant to the provisions of SEPP1, is not well founded; 3. my finding in relation to the Applicant's written request concerning the proposed development at 54 Wentworth Street included that it failed to complete successfully the statutory task required of it under cl 7 of SEPP1, to establish, to the Court's satisfaction, that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, for reasons provided above at [101(2)];
13. Notwithstanding my finding (above at [115]), I have further considered the Applicant's written request pursuant to the provisions of SEPP1 to vary the HoB and height at eaves developments in relation to its proposed development at 56 Wentworth Street, and I also find that it is also not well founded because: 1. the Applicant's written request in relation to the Subject Site at 56 Wentworth Street has adopted the identical approach taken by the Applicant in its request to vary the same standards in relation to its proposed development at 54 Wentworth Street (see above at [99] and [100]); 2. I have already found that the Applicant's written request in relation to 54 Wentworth Street did not complete successfully the statutory task of satisfying me that compliance with the HoB and height at eaves development standards was unreasonable or unnecessary in the circumstances of that case; 3. for the same reasons identified above at [102(1)] and [102(2)], I find that the Applicant written request to vary the HoB and height at eaves development standards in relation to 56 Wentworth Street has not succeeded in completing the statutory task required under cl 7 of SEPP1, and I am not satisfied that compliance with the HoB and height at eaves development standards in subcl 1(1) is unreasonable or unnecessary.
14. Further, and as was the case above in relation to the proposed development at 54 Wentworth Street, I have also not been able to form the opinion that granting of consent to that development application would be consistent with the aims of SEPP1, as required under the provisions of its cl 7 in relation to the aims of SEPP1 in its cl 3.
15. Those aims of SEPP1 were identified above at [23]. The SEPP provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where: 1. strict compliance with those standards would, in any particular case, be unreasonable or unnecessary, which I have addressed above at [120]; or 2. they tend to hinder the attainment of the objects specified in subss 5(a)(i) and (ii) of the Act.
16. The objectives in ss 5(1)(i) and (ii) of the EP&A Act to which cl 3 of SEPP1 refers, and as that Act applied to SEPP1, are to encourage: 1. under s 5(1)(i), the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; and 2. under s 5(1)(ii), the promotion and co-ordination of the orderly and economic use and development of land.
17. The Applicant's written request noted that the aims of the EP&A Act were currently provided within s 1.3 of that Act.
18. In seeking to demonstrate that compliance with the development standards in subcl 1(1) would hinder attainment of the objectives of the EP&A Act, the Applicant's written request stated as follows: 1. the variation would facilitate the orderly economic development of a recently subdivided parcel of land, which I assess to be an assertion and not a reason that would explain how compliance with the development standard would hinder attainment of the objectives of the EP&A Act; 2. the variation would facilitate full utilisation of the amenity provided by the topography of the site which requires a stepped building form, and which I assess does not address the central task to be completed under cl 7 of SEPP1 as: 1. in no way does it demonstrate how compliance with the development standard would hinder attainment of the objectives of the EP&A Act; and 2. in any case, the proposed development on 56 Wentworth Street does not include a stepped built form, and so the submission has no relevance to the proposed development being considered; 1. the substantial planting in front of the existing dwelling, as well as the built form itself, would contribute to the landscape setting of the locality and obscures the additions such that they will make a limited but positive contribution to the diversity of building forms in the locality, which I assess: 1. does not relate to the variation to the development standard sought by the Applicant; and 2. does not demonstrate how compliance with the development standard would hinder attainment of the objectives of the EP&A Act; 1. the height of the breach is at such a distance from the public road that it can only be viewed at extreme angles that separate its visual relationship to the streetscape, which I assess does not demonstrate how compliance with the development standard would hinder attainment of the objectives of the EP&A Act; 2. the variation would provide levels that connect at both sides of the sloping block over two levels which it said was necessary to facilitate the orderly and economic use of the land, but which I assess to be an assertion, and does not explain, and so does not demonstrate, how compliance with the development standard would hinder attainment of the objectives of the EP&A Act; 3. the building and landscaping would serve to soften the visual appearance of the Subject Site at 56 Wentworth Street in a manner respectful of the topography of and natural constraints of that site, and that the variation sought is necessary to improve the design and amenity of the built environment, but which I assess to be an assertion, and does not explain, and so does not demonstrate, how compliance with the development standard would hinder attainment of the objectives of the EP&A Act.
19. For the reasons provided above (at [125]), I find that the Applicant's written request to vary the HoB and height at eaves development standards in relation to its proposed development at 56 Wentworth Street does not demonstrate that compliance with the developments standards in subcl 1(1) would hinder attainment of the objectives of the EP&A Act, as required under the provisions of cl 7 of SEPP1.
20. As a consequence of my findings above at [115], [120] and [126], I have formed the opinion that: 1. the Applicant's written request to vary the HoB and height of eaves development standards applicable to development on the Subject Site at 56 Wentworth Street is not well founded; 2. because its written request is not well founded, and as the Applicant's proposed development at 56 Wentworth Street exceeds the applicable height and height of eaves development standards, the Applicant's development application DA X/643/2019 cannot be approved, and 3. the appeal in relation to the Respondent's refusal of development application X/643/2019 should be dismissed.

Conclusion in relation to the Applicant's written requests to vary the HoB and height at eaves development standards

1. As noted above (at [92], [107] and [127]), I have concluded that the Applicant's written requests seeking to vary the HoB and height at development standards in relation to its proposed developments at 52, 54 and 56 Wentworth Street, are not well founded and, as a consequence, the Applicant's appeals in relation to its development applications, as amended, for these three lots should be refused.

Conclusion

1. As a consequence of my finding above (at [128]) there is no utility in further consideration of the remaining contentions in these appeals, and the Court makes the following orders:

Proceedings 2020/99678

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application X/76/2020 seeking consent for construction of a two-storey dwelling house with associated earthworks and landscaping at 52 Wentworth Street, Blackheath, is determined by way of refusal; 3. The exhibits are returned, with the exception of Exhibits B, C, M, N, V, W, 4, 7, and 10.

Proceedings 2020/78655

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application X/13/2020 seeking consent for construction of a two-storey dwelling house with associated earthworks and landscaping at 54 Wentworth Street, Blackheath, is determined by way of refusal. 3. The exhibits are returned, with the exception of Exhibits B, C, M, N, V, W, 4, 7, and 10.

Proceedings 2020/97407

1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application X/643/2019 seeking consent for alterations and additions to an existing dwelling at 56 Wentworth Street, Blackheath, is determined by way of refusal. 3. The exhibits are returned, with the exception of Exhibits B, C, M, N, V, W, 4, 7, and 10.

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