[2019] NSWLEC 61
Initial Action Pty Limited v Woollahra Municipal Council (2018) 236 LGERA 256
Source
Original judgment source is linked above.
Catchwords
[2019] NSWLEC 61
Initial Action Pty Limited v Woollahra Municipal Council (2018) 236 LGERA 256
Judgment (10 paragraphs)
[1]
Judgment
COMMISSIONER: The nature of proceedings: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicants against the deemed refusal of development application no. DA459/21 (DA) by North Sydney Council (respondent).
The DA was lodged with the respondent on 29 December 2021. The appeal was filed on 9 May 2022, within the time limit prescribed by s 8.10 of the EPA Act.
The appeal falls within Class 1 of the Court's jurisdiction. The statutory power and function to be exercised is contained in s 4.16 of the EPA Act.
The DA, as amended, seeks development consent for the construction of a three-storey 'dual occupancy (attached)' development, including basement level parking for four cars and landscaping and subdivision at 60 Kareela Road, Cremorne Point, being Lot D in DP 409327 (site).
The conciliation conference: The Court arranged for the appeal to be determined pursuant to the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). Under s 34AA(2), s 34 of the LEC Act applies to the proceedings. Section 34AA(2) requires that the Court must arrange a conciliation conference between the parties as a first step in the determination of the appeal.
I presided over the conciliation conference on 8 September 2022.
The parties' agreement: At the conciliation conference, the parties reached agreement as to the terms of a decision which would be acceptable to the parties. This decision involved the Court upholding the applicants' written request pursuant to cl 4.6 of North Sydney Local Environmental Plan 2013 (LEP 2013) with respect to the development standard for height set out in cl 4.3(2) of LEP 2013, upholding the appeal and granting development consent to an amended DA subject to conditions.
The amended plans, which now form part of the DA, have been lodged on the NSW Planning Portal with the agreement of the respondent, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).
Satisfaction of jurisdiction: Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. In this case, as noted above, the parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA subject to the agreed conditions of consent in Annexure 'A'.
There are jurisdictional pre-requisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional pre-requisites of relevance in a joint jurisdictional statement and explained how those pre-requisites have been satisfied. The matters of relevance and the parties' explanation as to their satisfaction, are summarised below.
[2]
Owner's consent
Owner's consent to lodge the DA has been provided as part of the documentation which accompanied the DA.
[3]
The cl 4.6 written request
The height of the proposal exceeds the maximum building height of 8.5 m set by cl 4.3(2) of LEP 2013 and the applicants rely upon cl 4.6 of LEP 2013 to justify the building height variation. A written request on behalf of the applicants dated 22 August 2022 requires consideration in this context.
The height of the new building varies between 6.86 m above existing ground level on the south-west corner up to 10.706 m on the north-eastern corner. The site is currently vacant and the exceedance is a consequence, in large part, of an excavated bench on the site, which alters the pre-existing ground level by up to 1.5 m. The excavated ground levels are related to earthworks undertaken for the construction of a residential flat building which previously stood on the site but has since been demolished.
The permissive power in cl 4.6(2) of LEP 2013 to grant consent to development despite the contravention of a development standard, is subject to conditions that must be met before the power can be exercised: Initial Action Pty Limited v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (Initial Action); Rebel MH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [22] (Rebel).
There are three conditions which must be met in order to enliven the power in cl 4.6(2) of LEP 2013.
First, the consent authority must consider a written request from the applicants which is of a specified content. It must positively demonstrate two things:
That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of LEP 2013). This is usually done by demonstrating that the objectives of the standard are achieved notwithstanding the non-compliance (Initial Action at [17]).
That there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2013).
The justification must focus upon the breach (the aspect or element of the development that contravenes the development standard) and not upon the development as a whole package (Initial Action at [24]). These matters are outcomes and not processes: Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 at [77] (Baron).
Second, the consent authority must 'evaluate' the written request. This is a different task to the obligation to 'consider' in cl 4.6(3)(a) of LEP 2013. The consent authority must form the opinion that it is satisfied that the written request has 'adequately addressed' the requirements in subcl (3) (cl 4.6(4)(a)(i) of LEP 2013). The process leading to that state of satisfaction, or otherwise, will often require the consent authority to analyse whether it believes that the written request has, in fact, demonstrated each of the matters in cl 4.6(3) of LEP 2013. The request cannot 'adequately' address the matters required to be demonstrated by cl 4.6(3) if it does not in fact demonstrate those matters (Baron at [78]).
Third, the consent authority must be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives of the zone in which the development is proposed to be carried out (cl 4.6(4)(a)(ii) of LEP 2013).
With respect to cl 4.6(4)(b) of LEP 2013, although s 39(6) of the LEC Act enables the Court to grant consent without obtaining or assuming the concurrence of the secretary, the Court should still consider the matters in subcl (5) (Initial Action at [29]).
In the conventional way, the applicants seek to justify the contravention by first demonstrating that compliance with the standard is unreasonable or unnecessary in the circumstances of the case because the objectives of the standard are achieved notwithstanding the breach. The objects of the height standard seek to step development on sloping land to follow the natural (rather than artificial) gradient and to promote the sharing of existing views and maintain solar access and privacy to existing dwellings and their residents. I agree with the parties that the design of the building will achieve those objectives.
Next, I agree with and adopt the applicants' reasoning that there are sufficient environmental planning grounds to justify the contravention. These grounds rely upon the existing but artificial sharp drop in levels across the site. Whilst the building has been stepped in form, to insist upon compliance with the standard would serve no beneficial purpose in this case because it would lead to an unsympathetic roof form and compromise the function and amenity of the rooms beneath it in circumstances where the proposed design achieves compatibility with neighbouring built form and without adverse impact to those properties or their occupants.
Accordingly, I am satisfied, as required by cl 4.6(4)(a)(i) of LEP 2013 that the applicants' written request has adequately addressed the above requirements.
I am further satisfied, as required by cl 4.6(4)(a)(ii) that the proposed development will be in the public interest because it is consistent not only with the objectives of the height standard, but also the objectives of the R2 Low Density Zone in which the site is located.
The relevant zone objectives are:
• To provide for the housing needs of the community within a low density residential environment.
• To encourage development of sites for low density housing, including dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.
• To ensure that a high level of residential amenity is achieved and maintained.
I agree with the parties and their respective planning and conservation experts that the proposed dual occupancy, in its amended form, promotes and respects these objectives.
Having reached the required state of satisfaction mandated by cl 4.6 of LEP 2013, the power to grant development consent despite the building height contravention is enlivened and the written request to vary the height standard may be upheld.
[4]
LEP 2013 (other provisions)
The site is located within the Cremorne Heritage Conservation Area (HCA) listed in Sch 5 of LEP 2013. An updated heritage impact statement has been filed and supports the DA. It concludes that the proposed development will have an acceptable impact on the Cremorne HCA, as the building is consistent with the existing setting. I agree with the parties that the provisions of cl 5.10 of LEP 2013 have now been satisfied by amendments to the design.
Clause 6.6 of LEP 2013 relates to dual occupancies and requires consideration of its provisions. These include that the form of the building should maintain the appearance of a dwelling house, that the dwellings be attached by more than 80% of the floor between them and that the area of the site on which the dual occupancy is proposed be greater than 450 m2 in area. I agree with the parties and am satisfied that the proposed development is consistent with the matters set out in that clause.
In accordance with cl 6.10 of LEP 2013 (earthworks) the application is accompanied by the geotechnical report which confirms that the earthworks proposed are acceptable.
[5]
State Environmental Planning Policy (BASIX) Sustainability Index - 2004 (BASIX)
The DA, as amended, is supported by a BASIX certificate. It satisfies the requirements in cl 75 of the EPA Regulation.
[6]
State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP)
The parties have considered the provisions of the Biodiversity SEPP and agree that the development will have no negative impacts.
[7]
State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)
Section 4.6 of the Resilience and Hazards SEPP identifies the matters that must be considered before consent can be granted. The evidence is that past land uses have been exclusively for residential purposes and I am satisfied that the relevant requirements of Resilience and Hazards SEPP have been considered and that there is no basis to refuse consent by reason of contamination.
[8]
North Sydney Development Control Plan 2013 (DCP 2013)
The parties inform me that the relevant provisions of DCP 2013 have been taken into consideration and that the proposed development, as amended, is satisfactory with respect to them.
[9]
Public notification
The original development application was notified by the respondent for a period of 14 days from 13 January 2022. The amended development application was notified to the two (2) previous objectors on 30 August 2022. The respondent advises that it has taken into consideration the submissions received in its consideration of the DA.
Based upon the above matters, and as required by s 34(3) of the LEC Act, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions.
Disposal of proceedings in accordance with the parties' decision: As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
The Court notes:
1. North Sydney Council as the relevant consent authority for the purposes of cl 55 of the Environmental Planning and Assessment Regulation 2000 agrees to the applicants amending DA459/21 to rely on the following documents:
1. Amended Site Plan (Rev D) prepared by Corben Architects and dated 7 September 2022.
2. Level 1 Plan (Rev D) prepared by Corben Architects and dated 7 September 2022.
3. Level 2 Plan (Rev D) prepared by Corben Architects and dated 7 September 2022.
4. Level 3 Plan (Rev D) prepared by Corben Architects and dated 7 September 2022.
5. Level 4 Plan (Rev D) prepared by Corben Architects and dated 7 September 2022.
6. Roof Plan (Rev D) prepared by Corben Architects and dated 7 September 2022.
7. Northern Elevation (Rev D) prepared by Corben Architects and dated 7 September 2022.
8. Southern Elevation (Rev D) prepared by Corben Architects and dated 7 September 2022.
9. Eastern Elevation (Rev D) prepared by Corben Architects and dated 7 September 2022.
10. Western Elevation (Rev D) prepared by Corben Architects and dated 7 September 2022.
11. Section A (Rev D) prepared by Corben Architects and dated 7 September 2022.
12. Section B (Rev D) prepared by Corben Architects and dated 7 September 2022.
13. Section C (Rev D) prepared by Corben Architects and dated 7 September 2022.
14. Section D (Rev A) prepared by Corben Architects and dated 7 September 2022.
15. Schedule of Finishes (Rev D) prepared by Corben Architects and dated 7 September 2022.
16. Location Plan (Issue 1) prepared by CMS Surveyors and dated 2 September 2022
17. Level 1 (Issue 1) prepared by CMS Surveyors and dated 2 September 2022
18. Level 2 (Issue 1) prepared by CMS Surveyors and dated 2 September 2022
19. Level 3 (Issue 1) prepared by CMS Surveyors and dated 2 September 2022
20. Level 4 (Issue 1) prepared by CMS Surveyors and dated 2 September 2022
21. Level 1, prepared by A Total Concept and dated 6September 2022
22. Level 2, prepared by A Total Concept and dated 6 September 2022
23. Landscape Details, prepared by A Total Concept and dated 6 September 2022
24. Driveway Plan 3m Wide Option (Rev A) prepared by Triaxial Consulting and dated 2 June 2022.
25. Cover Sheet (Rev B) prepared by Triaxial Consulting and dated 22 June 2022.
26. General Notes (Rev B) prepared by Triaxial Consulting and dated 22 December 2021.
27. Level 1 and 2 Stormwater Drainage Concept Plan (Rev B) prepared by Triaxial Consulting and dated 22 December 2021.
28. Level 3-4 & Roof Stormwater Drainage Concept Plan (Rev B) prepared by Triaxial Consulting and dated 22 December 2021.
29. BASIX Certificate No. 1264072M_02 prepared by Max Brightwell dated 6 September 2022.
1. The respondent has lodged the amended application on the NSW planning portal on 9 September 2022.
2. The applicants have subsequently filed the amended application with the Court on 19 September 2022.
The Court orders:
1. The applicants' written request pursuant to cl 4.6 North Sydney Local Environmental Plan 2013 (LEP 2013) seeking a variation to the development standard for height set out in cl 4.3(2) of LEP 2013 is upheld.
2. The appeal is upheld.
3. Development application DA 459/21 for construction of a three-storey dual occupancy development, including a basement parking level for four cars and landscaping and Strata subdivision at 60 Kareela Road Cremorne Point also known as Lot D in DP 409327 is determined by grant of consent subject to the conditions in Annexure 'A'.
……………………….
C McEwen
Acting Commissioner of the Court
Annexure A (456228, pdf)
[10]
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Decision last updated: 23 September 2022