SNL Building Construction Pty Ltd v Lake Macquarie City Council

Environmental Planning and Assessment Act 1979

1. The objects of the of the Environmental Planning and Assessment Act 1979 (EP&A Act) are 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(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
3. Section 4.15(3A) of the of the EP&A Act further provides that: 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. …

State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development

1. State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) aims to improve the design quality of residential flat development in New South Wales.
2. SEPP 65 Policy recognises that the design quality of residential flat development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design.
3. Schedule 1 of SEPP 65 provides a series of design principles to guide development of residential apartments, of which the following are of particular relevance in this appeal: Principle 1: Context and neighbourhood character Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions. Responding to context involves identifying the desirable elements of an area's existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood. Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change. Principle 2: Built form and scale Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings. Good design also achieves an appropriate built form for a site and the building's purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

Lake Macquarie Local Environmental Plan 2014

1. Development on the Subject Site is subject to the provisions of Lake Macquarie Local Environmental Plan 2014 (LMLEP). The following provisions of RLEP are of particular relevance in this appeal: 1. Clause 2.1, which establishes land use zones within the area covered by the plan as provided in cl 2.2 of LMLEP. The Subject Site is zoned B1 Neighbourhood Centre, and under the provisions of cl 2.3 of LMLEP, the objectives of this zone are to: •provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood; •encourage employment opportunities in accessible locations; •create urban centres for safe and vibrant social, cultural, recreational and community activity; •provide for shop top housing as part of mixed use developments. 1. The Applicant's shop top housing development, which has previously received consent, and to which the proposed additional fourth floor in this appeal would be added, is a permissible form of development within this zone. 1. Clause 4.3, concerning the height of buildings, the objectives of which are to: •ensure the height of buildings are appropriate for their location; •permit building heights that encourage high quality urban form. 1. A 10m height of buildings development standard is applicable to developments on the Subject Site, and the Applicant's proposed development does not comply with this standard. 1. Clause 4.6, which makes provision for proponents to seek an exception to a development standard, and which, in relation to this appeal, provides as follows: (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 Secretary has been obtained. (5) In deciding whether to grant concurrence, the 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 Secretary before granting concurrence. 1. The Applicant has prepared a written request under the provision of clause 6.6 of LMLEP seeking to vary the application of that development standard in relation to its proposed development.

Lake Macquarie Development Control Plan 2014

1. The Introduction to Lake Macquarie DCP 2014 identifies that the purpose of the plan is: to implement Council's Lifestyle 2030 Strategy (LS 2030 Strategy) and LMLEP 2014 by facilitating ecologically sustainable development.
2. The overall objectives of LM DCP 2014 are to: •Promote ecologically sustainable and quality development in the City, •Elaborate on the requirements of LMLEP 2014, as a key tool in the LEP's implementation, •Provide detailed guidance to a range of stakeholders (including applicants and the general public) of Council's requirements for building, subdivision, and land development, and •Provide detailed criteria to assist Council in assessing Development Applications (as required by Section 4.15 (1)(a) of the Environmental Planning and Assessment Act, 1979) (EP&A Act).
3. Part 4 of LMDCP provides guidance and controls relating to development in business zones.
4. Part 9 provides guidance and controls relating to development in relation to specific land uses, including in relation to residential flat buildings, which the Respondent advised it had adopted as a basis for guiding shop top housing developments.
5. Of particular relevance in the current appeal are the provisions of the following clause in the above Parts of LMDCP: 1. cl.1.6 within Part 4 provides guidance in relation to development within land zoned B1 Neighbourhood Centre, including the B1 zone in Whitebridge, as follows: The B1 Neighbourhood Centre Zone is intended to provide a limited range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. Preferred land uses are small retail premises, food and drink premises, and smaller office premises at street level with office premises or housing above. 1. cl. 2.2 within Part 4 in relation to scenic values, which provides: The Landscape Settings and Significant Natural Landscape Features Maps identify the Landscape Setting boundaries and the relevant Scenic Management Zone for each Landscape Setting. The maps are a guide to the scenic quality associated with lands within the City of Lake Macquarie and are contained within the Scenic Management Guidelines. The Scenic Management Guidelines provide supporting documentation to this DCP. Objectives: a. To ensure that the scenic values of the City are protected and enhanced. b. To ensure that developments visible or adjoining the coastline, Lake Macquarie or ridgelines maintain and enhance the scenic value of these features. Controls: 1. A landscape and visual impact assessment is required for development identified in Table 1 unless specified by Council. A landscape and visual impact assessment must be prepared in accordance with section 7.3 of the Scenic Management Guidelines. 1. Table 1 of cl 2.2 includes a requirement that a visual impact assessment (VIA) should be prepared for any new development or alterations and additions resulting in a building or structure equivalent to 4 storeys or more (in any zone), or a car park of 2 or more storeys (in any zone). 2. A VIA has been prepared by the Applicant in respect of the proposed development. 1. cl. 6.1 within Part 4 in relation to front setbacks and which has the following objectives and controls: Objectives: a. To maximise building mass and floor space at the street boundary. b. To define the spatial character of the street. c. To ensure privacy and amenity on upper levels. Controls: 1. Development on land zoned B1 Neighbourhood Centre, B2 Local Centre or B3 Commercial Core must be built to the primary street boundary for the full width of the building. 2. On corner lots, development on land zoned B1 Neighbourhood Centre, B2 Local Centre or B3 Commercial Core must be built to the secondary street boundary for the full depth of the building. 3. On upper levels, development must be set back at least three metres from the primary street boundary, and for corner lots, development must be set back three metres from the secondary street boundary …. 1. cl. 13.4 within Part 9 in relation to side setbacks for residential flat buildings, and which provides the following objectives and controls: Objectives: a. To provide adequate separation between buildings to ensure that a reasonable level of privacy, amenity and solar access is maintained. b. To provide visual separation between buildings. c. To provide opportunities for the planting of vegetation. Controls: 1. Side setbacks for Residential Flat Buildings must be a minimum of three metres. 2. Above ground structures must not encroach on the side boundary setback of residential flat buildings. 3. For residential flat buildings that adjoin the R2 zone, side setbacks must be: i. A minimum of three metres for buildings up to 4.5m. ii. A minimum of six metres for buildings over 4.5m. iii. A minimum of nine metres for elements of buildings over two storeys in height. Note: Additional setbacks may be required under SEPP 65 - Design Quality of Residential Flat Development.

Contentions

1. As discussed above at [15(3)] and earlier, a principal contention in this appeal concerned the proposed breach of the height of buildings development standard under cl 4.3 of LMLEP, and whether the Applicant's written request under cl 4.6 of LMLEP to vary that standard was well founded. A consent authority, or the Court on appeal, must be satisfied that the Applicant's cl 4.6 written request is well founded in order to enliven the power to grant consent.
2. The other contentions requiring resolution in the appeal concerned the potential visual impacts of the proposed development in relation to context and character, and the proposed development's compliance with the setback controls within LMDCP.
3. Consequently, the specific questions addressed in this appeal, and the order in which I will address them, are: 1. is the Applicants' cl 4.6 written request to vary the height of buildings development standard prescribed for the Subject Site under cl 4.3 of Lake Macquarie LEP 2014 well founded? 2. is the potential visual impact of the proposed development acceptable in relation to the context and character of the local area? 3. are the proposed front and side setbacks of the proposed development acceptable in relation to the provisions of LMDCP?

Is the Applicants' cl 4.6 written request to vary the height of buildings development standard prescribed for the Subject Site under cl 4.3 of Lake Macquarie LEP 2014 well founded?

1. The Applicant was granted leave to rely on an amended written request, prepared pursuant to the provisions of cl 4.6 of LMLEP, to vary the height of buildings development standard applicable to the Subject Site under cl 4.3 of LMLEP, and this was tendered as evidence at the hearing.
2. The height of building development standard in cl 4.3 of LMLEP is not a development standard that is expressly excluded from the operation of cl 4.6(2) of LMLEP, and so the Applicants' written request to vary this standard can be considered in this appeal.
3. The provisions of cll 4.6(3) and 4.6(4) of LMLEP include preconditions to the exercise of power to grant consent, and I must be satisfied that the preconditions have been met in order for the power to grant consent to be enlivened.
4. In assessing the Applicants' cl 4.6 written request, I will first summarise the requirements for the consent authority's consideration of these requests, which also apply to the Court on appeal.

Requirements for consideration of cl 4.6 written requests

1. The approach to determining a cl 4.6 request has been the subject of a judgment of Preston CJ in the matter of Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (referred to hereafter as 'Initial Action'), in which His Honour expanded on what he had previously described in Randwick City Council v Micaul Holdings Ltd (2016) 225 LGERA 94; [2016] NSWLEC 7 as the correct approach to assessing whether a cl 4.6 written request is well founded.
2. His Honour said in Initial Action [at 13] that cl 4.6(4) establishes preconditions that must be satisfied before a consent authority can exercise the power in cl 4.6(2) to grant development consent for development that contravenes a development standard.
3. He further stated [at 14] that: The first precondition, in cl 4.6(4)(a), is that the consent authority, or the Court on appeal exercising the functions of the consent authority, must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii)…… The formation of the opinions of satisfaction as to the matters in cl 4.6(4)(a) enlivens the power of the consent authority to grant development consent for development that contravenes the development standard.
4. Finally, the Chief Justice said [at 15] that: The first opinion of satisfaction in cl 4.6(4)(a)(i), is that the applicant's written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3).
5. In addition, under cl 4.6(4)(a)(ii) of LMLEP, 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 with the objectives for the development within the zone in which the development is proposed to be carried out.
6. Under cl.4.6(3) of LMLEP, 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.
7. During the hearing, the Applicants' cl 4.6 written request was the subject of testimony from the Parties' expert planners: 1. Mr Jeff Mead, for the Respondent; and 2. Mr Paul McLean, for the Applicant.
8. During their testimony, the Respondent's planning expert, Mr Mead said that, in relation to the requirements of cl 4.6(4)(a)(ii) of LMLEP, in his opinion the Applicant's proposed development did not offend the zone objectives of the Subject Site's B1 Neighbourhood Centre zoning (see above at [22(1)]) because these objectives were broad and did not go to a question of built form.
9. Mr McLean did not challenge this opinion, and I am also satisfied that the proposed development does not offend, and is consistent with, the objectives of the Subject Site's B1 zone.
10. Concerning the requirements of cl.4.6(3) of LMLEP (see above at [40]), I will first address whether compliance with the development standard is unreasonable or unnecessary, and I will then consider whether there are sufficient environmental planning grounds to justify contravening the standard.

Is compliance with the minimum height of buildings development standard unreasonable or unnecessary?

1. In assessing whether compliance with the standard is unreasonable or unnecessary, it is appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 (referred to hereafter as Wehbe) in which His Honour identified the five most frequently used pathways applied to establish whether compliance is unreasonable or unnecessary.
2. These are to establish one, or more, of the following: 1. that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary; 3. that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable; 4. that 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. (1) that "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.
3. The Applicant's cl.4.6 written request asserted that compliance with the height of buildings development standard is unreasonable or unnecessary because the proposal achieved the objectives of the standard.
4. The objectives of the development standard in cl 4.3 of LMLEP were identified above at [22(2)]. These are to: • ensure the height of buildings are appropriate for their location; • permit building heights that encourage high quality urban form.
5. In relation to the first of these objectives, the Applicant's cl 4.6 written request stated that its now proposed higher built form of 'Building A' would be located on the northern side of Dudley Road, and central to the urban centre, and would make a positive contribution to the streetscape and character of Whitebridge urban centre. The request added that the 'small' element of additional height was appropriate in the context of the site and the surrounding location.
6. In relation to second objective, the Applicant also said that the proposed 'shorter elevation' of the proposed additional fourth floor on Building A would result in a building height that would generate a sense of enclosure to the public spaces in the Dudley Road neighbourhood centre, and would encourage a high quality urban form, that would also: 1. add modulation and interest to the design; and 2. avoid a longer unrelieved roofline on the approved building.
7. The expert planners differed in their evidence concerning whether the proposed development complied with the objectives of the height of buildings development standard in LMLEP.
8. Of relevance to the first of the height of buildings development standard's objectives, that being to ensure the height of buildings are appropriate for their location,: 1. Mr Mead said: 1. the Applicant's proposed fourth storey addition to 'Building A' was not appropriate for its location and was incompatible with the character of the Whitebridge urban centre. He said that he based this assessment on the lack of cues within existing development in the area that would encourage a strong presentation of a fourth floor to Dudley Road; 2. he maintained his opinions, as expressed in the joint expert report prepared with Mr McLean, concerning the adequacy of the Applicant's cl 4.6 written request, and in which he said that the addition of the fourth storey to 'Building A' would result in a building that would not be consistent or compatible with the existing or desired future character of the locality; 3. that while the Subject Site falls within the Dudley Scenic Management Zone (DSMZ) within the Lake Macquarie Scenic Management Guidelines (LMSMG), which includes a desired future character for the DSMZ, the site is located within a commercial zone, and so does not contribute to scenic value of the locality; 4. there is no locality statement within the LMDCP for the Dudley Road neighbourhood centre, and the appropriate basis for inferring a desired future character of the Subject Site is the applicable development standards, of which the height of buildings standard is the most important, given the absence of a floor space ratio (FSR) standard applicable to the Subject Site; 5. for the reasons provided above in (a), (b), (c) and (d), the Applicant's proposed addition of a fourth floor to 'Building A' did not make a positive contribution to the streetscape and character of Whitebridge urban centre, as submitted by the Applicant, and therefore was appropriate for its location; 6. other locations existed within the Subject Site that could better accommodate the additional FSR proposed by the Applicant in relation to the proposed fourth floor to 'Building A'. 1. Mr McLean said: 1. that the most relevant cues for what he had described, in the joint expert report prepared with Mr Mead, as the emerging character of the streetscape on Dudley Road came from the existing buildings on Dudley Road, and those developments already approved within the Subject Site; 2. the most relevant of the cues was provided by the approved 'Building B', although he noted that the relationship between 'Building A', 'Building B' and the streetscape was an important consideration; 3. he agreed with propositions put by Mr Griffiths, for the Respondent, that: 1. 'Building B' presented as a three storey building to Dudley Road; 2. no other buildings in the approved development on the Subject Site are of a four storey scale, and that all others are either a one, two or three storey scale; 1. while the proposed fourth storey addition to 'Building A' would present as a significant step up in height compared to the approved 'Building B', this would not, in his opinion, be jarring to an observer.
9. Of relevance to the second of the objectives for the standard, that being to 'permit building heights that encourage high quality urban form': 1. Mr Mead said: 1. urban designers did not, in his experience, all agree on how best to achieve the sense of enclosure advocated by the Applicant as a basis for the achievement of this second objective, and that there was no 'golden rule' which provided a ratio of building height to road width that would guide the achievement of a sense of enclosure for Dudley Road; 2. there were no development standards in LMLEP, or controls LMDCP, that sought to deliver a sense of enclosure to Dudley Road in the area of the neighbourhood centre. Mr Mead added that, in his opinion. there was no problem with the urban form of the currently approved development that needed to be fixed; 3. if a sense of enclosure was a desired outcome for the area this could be achieved by other means, such as through the provision of trees and landscaping, or lighting, and that these would, in his opinion, be more appropriate for adoption along Dudley Road; 4. because land opposite the Subject Site on Dudley Road was zoned E2 and was unlikely to be developed, there was no opportunity to provide a sense of enclosure to the Dudley Rd streetscape in the vicinity of the proposed development; 5. an objective of the Building Height control in section 6.12 of Part 6 (Development in Business Zones) of LMDCP was to ensure that building height did not overwhelm the public street and is compatible with the scale of surrounding developments. Mr Mead said that, in his opinion, this would be compromised by the addition of a fourth storey to 'Building A' as proposed by the Applicant; 6. as a consequence of his opinions above at [(a)] to [(e)], the proposed development did not comply with the second objective of the development standard. 1. Mr McLean said that: 1. the proposed addition of a fourth storey to 'Building A' was an opportunity to provide a sense of enclosure to the Dudley Road neighbourhood centre, which he felt would be positive in terms of urban design; 2. the sense of enclosure derives from the combination of building height and road width; 3. while the proposed fourth storey addition to 'Building A' would be set back between 3m and 4m from the front building alignment, in relation to Dudley Road area the building height was more important than the wall height of the building in generating the sense of enclosure.
10. The expert planners did agree during their testimony that: 1. the use of cues from existing and proposed developments were important in establishing the character of the streetscape of the Dudley Road neighbourhood centre; 2. the height of building cues available within the area of the proposed development were for a maximum three storey building height;
11. Having considered the testimony of the expert planners, I prefer the position, and conclusions, of Mr Mead in relation to the proposed development's compliance with the objectives of the height of buildings standard in cl 4.3 of LMLEP, for the reasons provided in his evidence, and in particular because: 1. I accept the agreed evidence of the expert planners that the available cues within the Dudley Road area are for a maximum three storey height; 2. I agree with Mr Mead that the Applicant's proposed fourth storey addition to 'Building A' is not in keeping with its location on Dudley Road as there are no cues that would otherwise encourage the additional height of 'Building A', as proposed by the Applicant; 3. as a consequence of the above points at (a) and (b), the proposed development does not achieve the first of the objectives of the height of building development standard in LMLEP; 4. I accept that there are no development standards in LMLEP, or controls or LMDCP, that seek to deliver a sense of enclosure to Dudley Road neighbourhood centre; 5. it is also my assessment, consistent with the evidence of Mr Mead, that there is no particular problem with the urban design of the currently approved development that needs to be fixed though the addition of a further storey to 'Building A'; 6. I further accept Mr Mead's evidence that, as the land opposite the Subject Site on Dudley Road is zoned E2 and so is unlikely to be developed, there is no realistic opportunity to provide the 'sense of enclosure' can be provided to the Dudley Rd streetscape in the vicinity of the proposed development; 7. for the reasons at (f), I do not accept the evidence of Mr McLean, that the proposed addition of a fourth storey to 'Building A' presents an opportunity to provide a 'sense of enclosure' to the Dudley Road neighbourhood centre or that this outcome would represent a superior urban design outcome compared with the currently approved development; 8. as a consequence of the above points at (d), (e), (f) and (g), the proposed development does not achieve the second of the objectives of the height standard; 9. finally, I concur with Mr Mead that, if a sense of enclosure was a desired outcome for the area this could be achieved by other means, such as through the provision of trees in landscaping or lighting.
12. As a consequence of my findings above at [55], I conclude that the Applicant's cl 4.6 written request: 1. does not demonstrate that the height of the proposed development is appropriate for its location, and also does not encourage high quality urban form, as it cannot, in my assessment, achieve the so-called 'sense of enclosure' relied on by the Applicant as a basis for contending that the additional fourth storey would encourage high quality urban form; 2. does not demonstrate the achievement of either of the objectives of the height of building standard in cl 4.3 of LMLEP; 3. has not demonstrated that compliance with the height of building development standard is unreasonable or unnecessary in the circumstances of the Applicant's proposed development, as required under cl 4.6(3)(a) of LMLEP.

Are there are sufficient environmental planning grounds to justify the proposed development contravening the height of buildings standard?

1. The requirement for an Applicant's cl 4.6 written request to demonstrate that there sufficient environmental planning grounds to justify contravening the standard was also discussed by Preston CJ in Initial Action, in which he said (at [24]) that: The adjectival phrase "environmental planning" is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EP&A Act, including the objects in s 1.3 of the EP&A Act.
2. The objects of the EP&A Act were provided above at [16].
3. Preston CJ also identified that there are two respects in which an Applicants' cl 4.6 written request needs to be 'sufficient' in relation to the environmental planning grounds so as to justify the contravention of a development standard. These are: 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]. 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].
4. The Applicants' cl 4.6 written request to vary the height of buildings development standard proposed the following arguments as a basis for demonstrating the sufficiency of environmental planning grounds used to justify the contravention of the height of buildings development standard: 1. the increased height would provide a superior urban design outcome, as it would provide a sense of enclosure, and a comfortable sense of place, and would deliver a positive contribution to the streetscape and surrounding landscape; 2. the increased height would result in a building height that encouraged high quality urban form because the proposed 'shorter elevation' of the additional fourth floor would add modulation and interest to the design, and avoid a longer unrelieved roofline on the approved building.
5. I have previously addressed the first of the Applicant's reasons in relation to whether the proposed development achieves the objectives of the height of building standard (see above at [55(c)]), and in relation to which I concluded that it did not as, in my assessment, it failed to provide a superior urban design outcome for the reasons identified at [55(g)].
6. As a consequence, the Applicant's first reason does not achieve the most relevant of the EP&A Act objectives, that being objective (g) of the EP&A Act
7. I rely on the reasons at [61] and [62] as the basis for concluding that the Applicant's submission in relation to the proposed development's superior urban design outcome does not provide a sufficient environmental planning ground to justify the contravention of the height of buildings development standard in cl 4.3 of LMLEP.
8. Concerning the Applicant's further argument that an additional fourth storey would add modulation and interest to the design of 'Building A', and would avoid a longer unrelieved roofline on the approved building,: 1. Mr McLean, in response to a question from the Respondent, agreed that the currently approved development on the Subject Site does not need a fourth storey added to 'Building A' to provide increased articulation, although he thought that it was appropriate. 2. Mr Mead said that, in his opinion, the proposed additional fourth storey on Building A detracted from the design of 'Building A', and was not of any benefit to it.
9. Having considered the testimony of the expert planners on this point, I once again agree with the submission of Mr Mead on this point. I base this agreement on my assessment that if the Applicant's aim was to provide for increased modulation in the roof line, or indeed further articulation to the Dudley Road façade, of the currently approved development, this could be achieved by means other than through the provision of an additional fourth storey to Building A in breach of the height of building development standard.
10. I also note that this point was made by at least one of the objectors, Ms Michelle Burdekin (see above at [8(1)(g)]), although I do not rely on this non-expert submission in reaching my conclusion at [65].
11. The Applicants' cl 4.6 written request also identified that the Applicant's proposed breach of the standard would not give rise to any potential impacts in relation to the following matters: 1. solar access; 2. privacy; 3. traffic and parking; 4. vegetation; 5. site coverage; 6. geotechnical; 7. stormwater; 8. bushfire.
12. However, the lack of impacts cannot, in my assessment, provide sufficient environmental grounds to justify the proposed development contravening the height of buildings standard. Indeed, as noted by Preston CJ in Initial Action, phrase "environmental planning" would refer to grounds that relate to the subject matter, scope and purpose of the EP&A Act, including the objects in s 1.3 of the EP&A Act.
13. The proposed breach of the height of buildings development standard has no work to do with respect to impact mitigation in relation to either the approved or proposed development, as there were no impacts to rectify either in relation to either development on the Subject Site.
14. Indeed, as Mr Mead observed in his evidence (see above at [53(1)(b)], there is nothing to fix in relation to design of the currently approved development. I concur with his view.
15. Based on the above considerations, I have concluded that the Applicant's cl 4.6 written request to vary the height of buildings development standard has not demonstrated that there are sufficient environmental planning grounds to justify the variation proposed as required under cl 4.6(3)(b).

Conclusions

1. The Applicants' cl 4.6 written request has not, in my assessment, demonstrated that: 1. compliance with the height of buildings development standard is unreasonable or unnecessary; 2. there are sufficient environmental planning grounds to justify contravening the standard as required under cl 4.6(3)(b) of LMLEP.
2. Based on my findings above at [72], I have concluded that the Applicants' written request to vary the height of buildings development standard in cl 4.3 of LMLEP is not well founded.
3. Therefore, I am not able to be satisfied that the matters required to be demonstrated by cl 4.6(3) of LMLEP have been adequately addressed, and nor, as a consequence, can I be satisfied that the proposed development will be in the public interest.
4. As satisfaction in relation to the matters provided in cl 4.6(3) is a precondition in order to enliven the Court's power to grant consent, and as I unable to be so satisfied, I do not have jurisdiction to determine this appeal.
5. As a consequence of my finding at [75], it is unnecessary for me to consider the remaining merits contentions in this matter, and the appeal should be dismissed.

Orders

1. The orders of the Court are: 1. The appeal is dismissed; 2. The exhibits are returned, with the exception of Exhibits A, B, D and 1. ………………………. M Chilcott Commissioner of the Court

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