Contravention of the FSR development standard
- The floor space ratio development standard for the site is 0.65:1 and the proposal has a FSR of 0.73:1. The objectives of the FSR development standard, at cl 4.4 of LEP 2012, are:
"(a) to ensure that the size and scale of development is compatible with the desired future character of the locality,
(b) to ensure that buildings are well articulated and respond to environmental and energy needs,
(c) to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item,
(d) to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views…"
- The applicant provided a written request seeking to justify the contravention of the FSR development standard prepared by Planning Ingenuity and dated 6 August 2019.
- Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 [13] ("Initial Action"). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:
"…
(4) Development consent must not be granted for development that contravenes a development standard unless:
(a) the consent authority is satisfied that:
(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
(b) the concurrence of the Secretary has been obtained…"
- On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action [29]).
The applicant's written request to contravene the height of buildings development standard
- The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action [15]), as follows:
"(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard…"
- The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action [25]). The consent authority has to be satisfied that the applicant's written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4].
- The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by the Chief Judge in Wehbe v Pittwater Council (2007) 156 LGERA 446 [42]-[51] ("Wehbe") and repeated in Initial Action [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action [16]):
1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
3. underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
4. the development standard has been abandoned by the council;
5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
- The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).
- The applicant's written request justifies the contravention of the FSR development standard on the basis that compliance is unreasonable or unnecessary because the proposal is to enclose an existing covered terrace and is located wholly within the existing footprint and building envelope of the dwelling. The proposal does not therefore increase the bulk of the existing dwelling. The proposal has no adverse amenity impacts on neighbouring properties.
- The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 [26] as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action [24]). Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action [24]).
- I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the exceedance of the development standard as a result of an external covered terrace area being enclosed and the existing floor area of the terrace contributing to the calculation of the gross floor area as a consequence. I am satisfied that justifying the aspect of the development that contravenes the development standard as acceptable because it does not result in any adverse amenity impacts on neighbouring properties or an increase in the building envelope of the existing dwelling is an acceptable justification for the exceedance of the FSR development standard in the circumstances of this matter.
Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone
- The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action [26]).
- The applicant justifies the exceedance of the FSR development standard on the following bases:
- The size and scale of the existing dwelling remains unaltered and will not impact upon the existing streetscape or adjoining neighbours considering the works are wholly contained within the existing building envelope;
- The amenity of residents in the vicinity and the broader context of the area will not be adversely impacted by the additional floor space. The proposal will not directly result in any significant adverse impacts on the adjoining residential properties in terms of perceived bulk scale and view loss.
- I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard, for the reasons given by the applicant in the written request.
Orders
- The orders of the Court are:
1. Leave is granted for the Applicant to amend the application to rely on the documentation listed in condition 1 of the conditions of consent at Annexure A.
2. The appeal is upheld.
3. Development Application No. 768/2017 (as amended) for alterations and additions to the existing dwelling house including enclosure of the ground floor alfresco area, a new deck with pergola on the western side of the pool and associated site and landscaping works at Lot G in DP 84739, otherwise known as 25 Liguria Street, Maroubra, is approved, subject to the conditions of consent at Annexure C.
4. Costs are reserved.
Susan O'Neill
Commissioner of the Court
Annexure A (396 KB)