TJ Slattery Investments Pty Ltd v Inner West Council

Land and Environment Court (NSW)|2020-07-14

Judgment

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 being an appeal against the deemed refusal of a development application No. D/2018/341 seeking approval for alterations and additions to an existing single storey warehouse building and change of use to residential dwelling, and associated works (the Proposed Development) at 217 Marion Street, Leichhardt, legally known as Lot 4 DP4107 (the Site).
The Site is Zone R1 General Residential and is rectangular in shape having an area of 156.3 square metres which attracts a Floor Space Ratio of 0.7:1 pursuant to cl 4.4(2B)(c)(ii) Leichhardt Local Environmental Plan 2013 (LLEP 2013).
The Respondent Council's case is that the Proposed Development does not meet the relevant planning objectives and that the Proposed Development should be refused for the following four reasons: 1. The Proposed Development will result in excess bulk and scale and will impact the amenity of the adjoining townhouse development; 2. There is a non compliance with the development standards relating to the Floor Space Ratio (FSR) (cl 4.4 LLEP 2013) and the Respondent does not support the Applicant's written request, pursuant to cl 4.6 LLEP 2013, to vary the FSR development standard; 3. The adaptive reuse is being undertaken outside the existing building envelope (cl 6.11(3)(c) LLEP 2013); 4. There is a non compliance with the development standard relating to Landscape (cl 4.3A LLEP 2013) and the Respondent does not support the Applicant's written request, pursuant to cl 4.6 LLEP 2013, to vary the landscape development standard.

Contamination - Clause 7 of the State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55)

One of the first issues I will deal with is the jurisdictional prerequisite regarding the consideration of whether the Site is contaminated, particularly relevant in this case where there is a proposed change of use for residential purposes (cl 7 of the State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55)). In addition to considering whether the land is contaminated, before determining an application for consent to carry out development that would involve a change of use on any of the land for residential purposes, the consent authority must consider a report specifying the findings of an investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.
The Applicant tendered a Stage 2 - Detailed Site Investigation (Contamination) report prepared by Sam Jones and Jerome Reyes of Compaction & Soil Testing Services Pty Ltd (CSTS Report) dated 17 June 2020 (Exhibit F). The CSTS Report expressly states in its Executive Summary that it was prepared in general accordance with the NSW EPA (2020) Consultants reporting on contaminated land: Contaminated Land and includes the following statement: "Based on the conducted assessment, and with consideration of the proposed redevelopment scenario, CSTS makes the following conclusions: The detected concentrations of identified contaminants of potential concern assessed are considered unlikely to present an unacceptable exposure health risk, for both direct contact or vapour instruction; and The site is considered to be suitable for residential land use with no requirement for further investigation or preparation of a RAP."
Further, the CSTS Report concludes and recommends at Part 12 of the report as follows: "Based on the findings of this Detailed Site Investigation, the site does not appear to pose an unacceptable risk to human health with continued use, with no requirement for further investigation or preparation of a Remedial Action Plan (RAP). During any future developments, typical site management controls should be implemented during any subsequent development including protocols to manage unexpected finds. During the process of development, should any indicators of potential contamination be encountered, this office is to be contacted immediately for further assessment. Should there be any change in the proposed development, all conclusions and recommendation are to be review, Specifically, if the proposed development will involve an alternate final land use, the findings in this report may require revision and further assessment may be necessary."
The same conclusion is reached by the Planning Experts and is set out as an agreed item at par [8] of the Joint Expert Report.
I have considered the CSTS Report and the Joint Expert Report and accept the conclusions stated therein and I am satisfied that the Site is not contaminated as there is no recommendation for any remediation (or capping) required of the Site for it to be made suitable for residential purposes.

Contentions

The Respondent's position, as submitted to the Court, is not that this Site should never be developed but that this particular Proposed Development for a 3 bedroom and 3 bathroom residential dwelling with a partial second storey does not meet the planning objectives of the LLEP 2013 or the Leichhardt Development Control Plan 2013 (LDCP). I will now deal with the Respondent's four reasons it contends for refusal of the Proposed Development. All four reasons involve a consideration of the objectives of the FSR and Landscape development standards (cl 4.4 and cl 4.3A of LLEP 2013), the objectives of the adaptive reuse cl 6.11 of LLEP 2013 and the objectives of the R1 General Residential zone as set out in the Land Use Table of the LLEP 2013. I note that the Planning Experts have undertaken a detailed review of the Proposed Development and whether it is consistent with these objectives and as set out in the Joint Expert Report the Planning Experts do not agree. Mr Goodyer's opinion is that the Proposed Development is not consistent with the objectives (at [50] regarding FSR, and at [52] regarding adaptive reuse cl 6.11, of the Joint Expert Report). Ms Deegan on the other hand concludes that in the context of an adaptive reuse the Proposed Development is consistent with the objectives and recommends approval (at [69]-[70] of the Joint Expert Report).

Height, bulk and scale of proposed first floor level

The first reason relied on by the Respondent is referred to in the evidence as Contention 4 and is particularised in the ASOFAC. The focus during the hearing was on the impact of the partial second storey on the solar access to the private open space (POS) of TH4.
The Applicant, in written submissions, states that it relies on the expert opinion of Ms Deegan that the height, bulk and scale of the Proposed Development is acceptable. In that regard, I note Ms Deegan's opinion regarding this contention is summarised at [58] of the Joint Expert Report as follows: "58. The proposal, although not strictly compliant with the numerical controls, does not have an impact on neighbours nor does it greatly impact the amenity and vitality of the surrounding residents. There is no visual or acoustic privacy concerns as no windows face the side boundary, any solar access impacts are likely to be reasonable given existing awnings in the courtyards of TH 3 and 4. Streetscape character is enhanced as a result of the proposal transitioning and stepping up to the street corner."
The Court heard from the Planning Experts under cross examination regarding the impact on the amenity of townhouse 3 (TH3) and townhouse 4 (TH4) and I note that they agree that TH4 is most affected (refer to [20] of the Joint Expert Report).
Ms Deegan explains at [54] of the Joint Expert Report that in her opinion: "54. […] the proposed first floor addition will have minimal, if any, impact on TH 3 courtyard and private open space. The upper level addition does not extend to the TH 3 courtyard and it is located to the south west of the courtyard, resulting in no loss of solar access."
The east elevation is the most relevant to this contention and is depicted in the image below and found at [45] of the Joint Expert Report.
The Planning Experts describe the eastern wall of the Proposed Development in the Joint Expert Report at [19]: "[19] We agree that the height of the eastern wall adjacent to the courtyard of Townhouse 4, 24-30 Foster Street is to be increased by approximately 1450mm - 1830mm at is southern end and by between 2060mm - 2730 mm at its northern end […]"
Further, in relation to solar access, the Planning Experts agree at [21] of the Joint Expert Report as follows: "[21] We agree that the awnings over the courtyards of Townhouses 3 and 4, 24-30 Foster Street, affect the sunlight accessibility and outlook from those townhouses toward the subject site."
Ms Deegan explains at [65]-[66] of the Joint Expert Report the impact of solar access to the POS of TH4 as follows: "65. Existing rear yard of both TH 3 and 4 are largely overshadowed by its own built form in morning hours. 66. At 11am the TH 4 courtyard has sunlight but has existing structure and awnings impacting ability to obtain sunlight cannot be measured. At 12pm sunlight is provided to the majority of POS area."
Mr Goodyer addresses bulk and scale in the context of one of the objectives of the Floor Space Ratio control as specified in cl 4.4(1) of LLEP 2013 at [50] of the Joint Expert Report and I provide the relevant extract of that paragraph as follows: "50. In my opinion the proposal fails to satisfy two of the three relevant objectives of the floor space ratio control as specified in clause 4.4(1) of LLEP 2013: (a) to ensure that residential accommodation: […] (iii) minimises the impact of the bulk and scale of buildings. Comment: the floor space ratio of a building is a rough indicator of the bulk and scale of a building; in other words, all things being equal the higher the floor space ratio the greater the building bulk and scale. Of course, all things aren't equal and an appreciation of the relationship between floor space ratio and building bulk and scale requires an analysis of the particular proposal and its impacts require an analysis of the context. The bulk and scale of the proposal is exacerbated in two ways. Firstly, it retains the front façade of the existing warehouse building yet creates a courtyard behind it, such that the area of the courtyard, which is excluded from gross floor area, none-the-less adds to the bulk and scale of the building. Secondly, the landscaped areas that are proposed are not sufficient to soften and moderate the bulk and scale of the building. The impact of the exceedance of the floor space ratio control is due primarily to that part of the development that is outside of the existing building envelope, being the upper level addition. The upper level addition has a scale that exceeds that of the single-storey dwelling houses to the west of the site. It will also present an excessive bulk and scale when viewed from the townhouses to the east of the site due to the lack of setbacks, presenting as a sheer wall over 5 metres in height when viewed from the garden of the adjoining Townhouse 4 to the west (garden level RL6.64, proposed top of gutter RL 11.7). From the courtyard of Townhouse 4 the wall on the boundary will be 4.3 metres in height (courtyard level RL7.4, proposed top of gutter RL11.7). In my opinion this will result in an excessive bulk and scale as the wall is located directly on the boundary, is not softened by landscaping or modulated in any way, and extends for the entire length of the courtyard of Townhouse 4."
Ms Deegan at [71]-[72] of the Joint Expert Report provides an alternate opinion as follows: "71. The first floor level is not considered excessive with regard to impact on its adjoining townhouses. There is no impact to TH3 given the first floor does not extend to the courtyard of TH3, nor oriented to the south resulting in a loss of solar access. 72. Minor additional impacts to TH4 which are considered to be reasonable in the circumstances."
Having considered the evidence of the Planning Experts regarding the bulk and scale of the Proposed Development to the extent that this affects the amenity of adjoining land, namely TH4, I accept Ms Deegan's conclusion that the impacts to TH4 are minor and they "are considered to be reasonable in the circumstances" and I note that the Proposed Development complies with the height standard.

Request to vary FSR development standard cl 4.4 LLEP 2013

The second reason the Respondent relies on is the non compliance of the Proposed Development with the FSR development standard. The Respondent particularised this contention in the ASOFAC as follows: "The proposal is not considered to satisfy Clause 1.2 (2)(l) - Aims of Plan; Zone R1 - General residential zone - objectives; and 4.4 - Floor space ratio - objectives of the Leichhardt Local Environmental Plan 2013 with respect to the non-compliant Floor Space Ratio (FSR) proposed. The permissible FSR for the site is 0.7:1 and the proposal is for an FSR of 0.81:1 which exceeds the permissible FSR by 16.85% or 18.44m2. The clause 4.6 Exceptions to development standards request submitted under the Leichhardt LEP 2013 is not supported. The existing building, with a floor space ratio of 0.65:1, complies with the development standard."
The Applicant has submitted a written request to vary the FSR development standard as required by cl 4.6 of LLEP 2013 dated June 2020 prepared by Justin Tse and verified by Helen Deegan, Director of City Plan (Exhibit D) (the FSR Variation Request).
Ms Deegan at [67]-[68] of the Joint Expert Report describes the extent of the non compliance with the FSR development standard as follows: "67. The subject site has a site area of 156.3m². The ground floor area is 94.8m² and 32.1m² located on the first floor. Subclause 2B(c) of Clause 4.4 FSR applies to the subject site as the site is edged brown on the FSR Map and has an area of more than 150m² but less than 300m². This requires a maximum gross floor area (GFA) of 109.41m² for a compliant FSR of 0.7:1. The proposal has 126.9m² of GFA, resulting in an FSR of 0.81:1 and a non compliance of 15.7% of the standard. This involves a minor increase in floor area of approximately 6.9m² from what was currently existing. 68. The variation to the FSR standard also does not result in a variation of the height standard"
Pursuant to cl 4.6 of the LLEP 2013, a consent authority must not grant consent in circumstances where the development contravenes a development standard unless it is satisfied of certain matters. As this will be relevant to the fourth reason addressed later in the judgment, I set out the matters I am required to be satisfied of as follows: 1. That the Applicant's written request has adequately addressed the requirement to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)); 2. The Applicant's written request has adequately addressed the requirement to demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)); 3. 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 to be carried out (cl 4.6(4)(a)(ii)).
Regarding the Respondent's concern about the aims of the LLEP 2013 I note that Ms Deegan at [77] of the Joint Expert Report states: "77. In terms of the LEP Aims especially cl.1.2 the proposal including the second storey is compatible with the character, style, orientation and pattern of surrounding buildings. The proposal maintains existing building orientation and steps up to corner site and transitions streetscape. There is no dominant character of the locality given the mix of development surrounding the site. In addition, there is also not an established landscaped character to its surrounds, especially along the Marion Street streetscape."
In addition to the requirement of cl 4.6 to be satisfied that the Proposed Development is in the public interest because it is consistent with the objectives of the development standard and the objectives of the zone, cl 2.3(2) of the LLEP 2013 also requires the consent authority to have regard to the objectives for development in the relevant zone when determining a development application. The requirement to have regard to the zone objectives is a different requirement to the requirement that a development consent cannot be granted unless the proposed development is consistent with the objectives of the zone. (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [65]). The objectives of Zone R1 General Residential are as follows: To provide for the housing needs of the community. To provide for a variety of housing types and densities. To enable other land uses that provide facilities or services to meet the day to day needs of residents. To improve housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. To provide landscaped areas for the use and enjoyment of existing and future residents. To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area. To protect and enhance the amenity of existing and future residents and the neighbourhood.
Ms Deegan, in the Joint Expert Report, gives her expert analysis of how the Proposed Development achieves the R1 General Residential zone objectives at table 2 from pages 18 to 22 of the FSR Variation Request and gives her expert opinion in relation to the R1 General Residential zone objectives and the Proposed Development in the Joint Expert Report at [70] as follows: "70. Due to the unique characteristics of the proposal, it is considered that the proposal is consistent with the objectives of the standard and the objectives of the R1 General Residential zone. The proposal also involves a change of use from a warehouse use which is currently prohibited in the zone to a residential use which is permissible with consent. This outcome is more consistent with the desired future character of the locality."
Mr Goodyer does not provide an alternative opinion regarding the R1 General Residential zone objectives and the Proposed Development.
Clause 4.4 of LLEP 2013 deals with the Floor Space Ratio. The objectives contained in subcl 4.4(1) are as follows: (a) to ensure that residential accommodation - (i) is compatible with the desired future character of the area in relation to building bulk, form and scale, and (ii) provides a suitable balance between landscaped areas and the built form, and (iii) minimises the impact of the bulk and scale of buildings, (b) to ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale.
The Parties are in agreement that cl 4.4(2B)(c)(ii) of the LLEP provides that the floor space ratio for the Site is not to exceed 0.7:1 and that the Proposed Development has a floor space ratio of 0.8:1 (Joint Planning Report at [17]): "17. We agree that clause 4.4(2B)(c)(ii) of LLEP 2013 provides that the floor space ratio for development on the land is not to exceed 0.7:1. We agree that proposed development has a floor space ratio of 0.81:1 (126.75m2 )."
The Court, in exercising the functions of the consent authority, must "in fact" be satisfied of the cl 4.6 matters (refer above at [28]): RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130.
In respect of the requirement of cl 4.6(3)(a), the common ways in which an applicant might address the requirement to demonstrate that compliance with a development standard is unreasonable or unnecessary were summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (held to be equally applicable in the context of cl 4.6 in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [16] (Initial Action)). These five common ways are summarised by Preston CJ in Initial Action at [17]-[21] as follows: [17] The first and most commonly invoked way is to establish 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: Wehbe v Pittwater Council at [42] and [43]. [18] A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary: Wehbe v Pittwater Council at [45]. [19] A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable: Wehbe v Pittwater Council at [46]. [20] A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council's own decisions in granting development consents that depart from the standard and hence compliance with the standard is unnecessary and unreasonable: Wehbe v Pittwater Council at [47]. [21] A fifth way is to establish that the zoning of the particular land on which the development is proposed to be carried out was unreasonable or inappropriate so that the development standard, which was appropriate for that zoning, was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in the circumstances of the case would also be unreasonable or unnecessary: Wehbe v Pittwater Council at [48]. However, this fifth way of establishing that compliance with the development standard is unreasonable or unnecessary is limited, as explained in Wehbe v Pittwater Council at [49]-[51]. The power under cl 4.6 to dispense with compliance with the development standard is not a general planning power to determine the appropriateness of the development standard for the zoning or to effect general planning changes as an alternative to the strategic planning powers in Part 3 of the EPA Act.
In this case, the Applicant relies only on the first and most commonly invoked way in the list above. I have referred to the Landscape development standard objectives analysis in the FSR Variation Request at pages 10 - 15 and the expert opinion expressed by Ms Deegan at pars [10] and [74] of the Joint Expert Report.
The Respondent does not support the FSR Variation Request and submits that the Court should not be satisfied that the requirements for consent set out in cl 4.6 have been met in this case. The Respondent relies on the evidence of Mr Goodyer in this regard.
Mr Goodyer's opinion regarding the Proposed Development and the objectives of the Floor Space Ratio control is found in the Joint Expert Report at [51] as follows: "51. In summary, my opinion, for the reasons detailed above, is that the proposal clearly does not satisfy two of the three relevant objectives of the floor space ratio control. The request to vary the floor space ratio control under clause 4.6 of LDCP 2013 relies upon the demonstrating that the proposal satisfies the objectives of the control. Furthermore, clause 4.6(4)(a)(ii) requires the consent authority (ie: the Court) to be satisfied that the proposal is consistent with the objectives of the control. Because the proposal is not consistent with those objectives it cannot be approved."
Mr Goodyer at [50] of the Joint Expert Report sets out his comments on the FSR development standard objectives. He agrees that the Proposed Development is not out of character and in relation to landscaping states that: "there is no balance between the landscaped areas and the built form."
I note however that Mr Goodyer agrees at [15] of the Joint Expert Report that: "[…] the existing development provides no landscaped area and that the proposed development currently provides 16m2 of landscaped area, representing 10.2% of the site area."
I do not accept Mr Goodyer's conclusion that there is no balance between the landscaped areas and the built form when taking into account the agreed position and the description of the Proposed Development regarding the provision of landscaped areas for the use and enjoyment of existing and future residents. Ms Deegan, when undertaking an analysis of the LDCP control C6 of C3.13 which indicates that landscaped open space should be provided for residents and at [87] of the Joint Expert Report states: "[…] The proposal includes 26m2 of hard landscaped area featuring schrubs and groundcovers, with the entire western boundary being landscaped along a 6m2 area with front courtyard. […] This is considered to be a positive landscaped and amenity outcome given the existing site coverage (85%) and the existing use of the site as a warehouse with no landscaped features."
The Applicant addresses the environmental planning grounds to justify the variation to the FSR development standard as required by cl 4.6(3)(b) and cl 4.6(4)(a)(i) at page 16 of the FSR Variation Request. These are not contested by Mr Goodyer.
I am satisfied that the Applicant's FSR Variation Request has adequately addressed the requirement to demonstrate that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). I accept that, in the circumstances of an adaptive reuse of a now prohibited warehouse to a permissible residential dwelling, compliance with the FSR development standard is unreasonable and this has been adequately demonstrated in the Applicant's written request at pages 10 to 14 in the extensive consideration of how the Proposed Development achieves the objectives of the FSR development standard notwithstanding the non-compliance with that development standard.
I am satisfied that the Applicant's FSR Variation Request has adequately addressed the requirement to demonstrate that there are sufficient environmental planning grounds to justify contravening the FSR development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)) and I accept the environmental planning grounds set out at page 16 of the FSR Variation Request as to the relevant objects of the EPA Act (s 1.3) and accept that these are not disputed and are sufficient to justify contravening the FSR development standard insofar as the Proposed Development promotes the orderly and economic development of land (s 1.3(c)) through the residential conversion of an existing warehouse (a prohibited use) in a general residential area and is consistent with ecological sustainable development principles through the provision of rain water tanks which allows for the retention of drainage water captured on site and minimising obstruction to the underground flow of water.
I am 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 for development within the zone in which the development is to be carried out (cl 4.6(4)(a)(ii)) for the reasons set out at [44] above and in relation to the objectives of R1 General Residential zone, the Applicant's FSR Variation Request considers the objectives of the R1 General Residential zone at pages 18 to 22 concluding at page 22 that: "the proposal is consistent with the objectives of the zone and in Section 5 it was demonstrated that the proposal is consistent with the objectives of the [FSR] development standard. According to clause 4.6(4)(a)(ii), therefore, the proposal in the public interest."

Adaptive Reuse of warehouse - cl 6.11: Is the increased FSR generally contained within the envelope of the existing building?

Related to the FSR considerations addressed above is the application of cl 6.11 of the LLEP 2013 - Adaptive reuse of existing buildings in Zone R1. Subcl 6.11(3)(c) requires any increase in floor space ratio to be generally contained within the envelope of the existing building. The Respondent submits that the Proposed Development does not seek to build within the existing envelope and is also not considered by the Respondent to satisfy the objectives and controls of C3.13 - Conversion of existing non-residential buildings and Appendix B Building Typologies - Warehouses and Factories within the Leichhardt Development Control Plan 2013 (LDCP), particularly Control C2 which requires that increases in floor space are contained within the existing building envelope and Control C6 which requires that landscaped open space to incorporate a planting area is provided to cater for the recreation needs of residents and enhance the environmental sustainability of the development.
The Applicant's written submissions at [12] states that the Applicant's case, relevant to cl 6.11, is that: "a. the proposal is to adaptively reuse an existing commercial/industrial building and it is therefore appropriate to consider consistency with the objectives of controls rather than strict numerical compliance; […] c. the streetscape would be enhanced by the design of the development; d. changing the use of an existing warehouse to a residential dwelling adds housing stock to the locality which is desirable in the R1 Residential Zone in which the property is located."
I set out cl 6.11 in full below in order to be able to appreciate the context of the Respondent's contentions regarding the requirement to limit any increase in FSR generally within the envelope of the existing building. 6.11 Adaptive reuse of existing buildings in Zone R1 (1) The objectives of this clause are as follows - (a) to provide for the adaptive reuse of existing buildings for residential accommodation, (b) to retain buildings that contribute to the streetscape and character of Leichhardt, (c) to provide satisfactory amenity for future residents of the area, (d) to ensure that development does not adversely affect the quality or amenity of existing buildings in the area. (2) This clause applies to land in Zone R1 General Residential. (3) Development consent must not be granted to the change of use to residential accommodation of a building on land to which this clause applies that was constructed before the commencement of this clause unless the consent authority is satisfied that - (a) the development will not adversely affect the streetscape, character or amenity of the surrounding area, and (b) the development will retain the form, fabric and features of any architectural or historic feature of the existing building, and (c) any increase in the floor space ratio will be generally contained within the envelope of the existing building.
The parties focused on cl 6.11(3)(c) regarding whether the increase in the floor space ratio of the Proposed Development is generally contained within the existing building envelope.
In this case the Respondent relies on the reasons explained by Mr Goodyer, to support its submission that the Court should not be satisfied that the increase in the floor space is "generally contained within the envelope of the existing building". In the Joint Expert Report at [44]-[49] Mr Goodyer undertakes a comparison of the elevations of the existing development and the Proposed Development to conclude that the proposal will appear on each elevation to exceed the existing building envelope.
Ms Deegan undertakes a different approach and addresses cl 6.11 in the Joint Expert Report at [80]-[81] as follows: "80. It is my opinion in relation to 6.11 - Adaptive reuse of existing buildings in Zone R1 of the Leichhardt LEP 2013, sub-clause 3(c), the increase in floor space ratio proposed by the development is contained "generally" within the existing envelope of the building. The building retains the existing façade and the second-floor addition is only partial and located toward the front of the existing building sitting within the front roof parapet. The clause assumes some additional floor space is likely to be required when an existing building is being adaptively designed for reuse and that FSR should be contained generally within the building envelope. It does not suggest that it can only occur completely within that envelope. 81. The clause does not specify what the existing envelope is, however, the clause does include objectives, which provide an indication of intention of the standard. When thinking about the objectives of this clause it is clear that the proposal relates specifically to the adaptive reuse of a building for residential accommodation. The retention of the front facade ensures that the building maintained its contribution to the streetscape and character, the upper level addition is set back from the street and it's 2 storey form allows for a transition from the two storey town houses on Foster St to the single storey "workers accommodation" west of 217 Marion St. The proposed building maintains amenity for future residents of the area as well as providing a pleasant internal amenity for future residents of the building."
The Respondent submits that the terms "generally contained" and "envelope of the existing building" are not defined in the LEP and should be given their ordinary meaning when construing the statutory control.
The Applicant referred the court to the adaptive reuse planning principle set out in the decision of Michael Hesse Associates Pty Ltd v Parramatta City Council (2003) 131 LGERA 390; [2003] NSWLEC 387 (Hesse) by Senior Commissioner Roseth. In that decision, which was about the proposed conversion of the Mercure Motel in Rosehill into an apartment building, Roseth SC dealt with the submission of the applicant in that case that: "[11] […] there was an inherent public benefit in the adaptive reuse of this building and that the other issues should be considered in the context of this public benefit."
Similar to the submissions of the Applicant in these proceedings, Roseth SC identified at [13] that: "[13] In essence, the applicant argued that normal standards of performance should be applied less stringently to this proposal because it involved the adaptive reuse of an existing building."
Ms Deegan at [57] and at [60] in the Joint Expert Report explains that: "57. In these circumstances where a proposal is to adaptively reuse an existing commercial/industrial building than strict compliance with numerical standards would always be a challenge and therefore consistency with the objective of these standards has become the focus. 60. As the proposal is for the adaptive reuse of an existing warehouse and has incorporated a part storey addition to the south of the existing building, the variation to development standards and DCP provision provides a development outcome which is consistent with the nature of the proposal (being adaptive reuse) and supports the mixed character of the area."
The Adaptive Reuse Planning Principle in Hesse can be found at [15] of the decision where Roseth SC states as follows: "[15] In my opinion, to be in the public interest, an adaptive reuse project must have an element of public benefit apart from resource conservation. One or more of the following circumstances must be present. The building is of historic or heritage value, the building is attractive and fits into its urban design context, the building is much loved by the community, the new use serves the public interest better than the existing use."
Roseth SC concluded in Hesse at [16] that there was no justification for assessing that proposal any differently from a proposal that does not involve adaptive reuse resulting from none of the circumstances he had referred to previously applied to that proposal. In this matter, the Applicant relies on the last of the circumstances listed by Roseth SC, namely that the new use serves the public interest better than the existing use because the existing use of warehouse is prohibited and the new proposed use "adds housing stock to the locality which is desirable in the R1 Residential Zone in which the property is located."
I accept the Applicant's submission and am satisfied that there is a public benefit from the adaptive reuse of the warehouse to a residential dwelling in accordance with the Proposed Development. I find that in circumstances where the phrase 'generally contained within the envelope of the existing building' is not defined, the court may apply the Adaptive Reuse Planning Principle in Hesse and assess compliance with cl 6.11(3)(c) less stringently.
Having considered the competing opinions of the Planning Experts and the Adaptive Reuse Planning Principle I accept the opinion and method employed by Ms Deegan at [80] and [81] of the Joint Expert Report quoted above and I find that the increased FSR of the Proposed Development is generally contained within the envelope of the existing building.

Request to vary Landscape development standard cl 4.3A LLEP 2013

In relation to landscaping, the fourth reason relied on by the Respondent, the Proposed Development is not considered by the Respondent to satisfy the following: 1. The aims of LLEP 2013 cl 1.2(2)(l) and (m) being: (l) to ensure that development is compatible with the character, style, orientation and pattern of surrounding buildings, streetscape, works and landscaping and the desired future character of the area, (m) to ensure that development provides high quality landscaped areas in residential developments; 1. cl 4.3A - Landscaped areas for residential accommodation in Zone R1 - objectives; and 2. cl 4.3A(3)(a)(i) - requirement for 15% soft landscaping on the site. The required soft landscaping provision is 15% or 23.4m2 and the proposal provides no soft landscaping.
Clause 4.3A of LLEP 2013 deals with the Landscaped areas for residential accommodation in the R1 General Residential zone. Subcl 4.3A(3) LLEP2013 provides that Development consent must not be granted to the development to which this clause applies unless - (a) the development includes landscaped area that comprises at least - (i) where the lot size is equal to or less than 235 square metres - 15% of the site area, […] and (b) the site coverage does not exceed 60% of the site area.
The objectives of cl 4.3A are listed in subcl 4.3A(1) and are as follows: (a) To provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents, (b) To maintain and encourage a landscaped corridor between adjoining properties, (c) To ensure that development promotes the desired future character of the neighbourhood, (d) To encourage ecologically sustainable development by maximising retention and absorption of surface drainage water on site and by minimising obstruction to the underground flow of water, (e) To control site density, (f) To limit building footprints to ensure that adequate provision if made for landscaped areas and private open space.
The definition of Landscaped Area differs between the LLEP 2013 and the LDCP. Landscaped Area is defined in the Dictionary to the LLEP 2013 as follows: landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area.
At [38]-[39] of the Joint Report Mr Goodyer explains the landscaping provisions and controls in the LDCP and the provisions of the LLEP 2013 as follows: "38. Part C1.12 of the LDCP 2013 contains provisions relating to landscaping. In the Background to the controls it recognises that "landscaping includes both 'soft' landscaping in the form of planted and grassed areas and 'hard' landscaping in the form of paving, outdoor furniture and similar constructed elements". The controls in the LDCP 2013 do not prevail over the requirements of clause 4.3A(3)(a)(i) of the LLEP 2013. In my opinion, a fair reading of the controls is that they recognise that the benefits of both hard landscaping and soft landscaping and they provide guidance on how to best achieve the benefits of both of those types of landscaping. 39. Part C3.13 of LDCP 2013 relates to Conversion of Existing Non-Residential Buildings. Control C6 requires: "C6. Landscaped open space to incorporate a planting area is provided to cater for the recreation needs of residents and enhance the environmental sustainability of the development"."
Ms Deegan at [89] and [91] provides: "89. The proposal provides a total area of 26m2 for hard landscaping (16.3%) and 20m2 which is consistent with the definition of landscaped area provided for in CL 4.3A. It is noted that the proposal would otherwise comply if this area were accounted for in the calculation of landscaped area for the purposes of this clause. […] 91. The proposal has been designed to provide two courtyard areas providing hard and soft landscaping providing appropriate amenity for future residents. Future residents also have easy access to Lambert Park directly opposite the site on Marion Street which also provides opportunities for residents to enjoy natural amenity."
The Applicant accepts that the Proposed Development does not comply with the numerical control in cl 4.3A(3)(a)(i) and has submitted a written request to vary the Landscape development standard as required by cl 4.6 of LLEP 2013 dated June 2020 prepared by Justin Tse and verified by Helen Deegan, Director of City Plan (Exhibit E) (the Landscape Variation Request). The Landscape Variation Request is not supported by Council.
The relevant matters about which the Court must be satisfied in relation to a cl 4.6 variation request are set out above at [28].
In respect of the requirement of cl 4.6(3)(a), the Applicant relies only the first of the five commons ways to demonstrate that compliance with a development standard is unreasonable or unnecessary, namely, that the objectives of the development standard are achieved notwithstanding non-compliance with the standard.
The Planning Expert agree at [15] of the Joint Expert Report "15. We agree that clause 4.3A(3)(a)(i) of LLEP 2013 requires that the development includes landscaped area that comprises at least 15% of the site area. We agree that the existing development provides no landscaped area and that the proposed development currently provides 16m2 of landscaped area, representing 10.2% of the site area. This is because the current stormwater plans identify a rain water tank and osd tank within some of the proposed landscape areas as per plan Drawing 021A, Issue DA, dated June 2020, Landscape Plan. […] 16. We agree that clause 4.3A(3)(b) of LLEP 2013 requires that the site coverage does not exceed 60% of the site area. We agree that the existing development has a site coverage of 85.4% (133.5m2 ) and that the proposed development has a site coverage of approximately 72% (112m2 )."
The Applicant, during the hearing, relies on Exhibit G Option 2 for the revised stormwater plans which is no change from the plans as considered by the Planning Expert.
The Respondent contends that the revised stormwater plans provided by the Applicant in July 2020, do not adequately resolve the issue. The Applicant has provided a stormwater plan, involving an above ground rainwater tank and above ground OSD tank. The Respondent's position is that where those tanks are placed significantly constrains the use and function of landscaping in those positions.
"Option 2" (Exhibit G) maintains the rainwater and OSD tanks in the same position as previous plans on the Western boundary, to the North of the proposed courtyard. This constrains the use and function of any landscaping in this area, and as agreed between the Parties' experts, the Proposed Development with such a configuration provides only 16m2 of landscaped area. Par [15] Joint Expert Report.
The Respondent submits: "Further, the impact of either of the two options for water storage outlined in the revised stormwater plans on the of quantum of landscaped area and/or the achievement of the objectives of the controls was not addressed in the Landscaping Variation Request."
I note however that at [15] of the Joint Expert Report the Planning Experts address the impact of the stormwater plan which is the 'Option 2' plans marked Exhibit G, as follows: "[15] We agree that clause 4.4A(3)(a)(i) of LLEP 2013 requires that the development includes landscaped area that comprises at least 15% of the site area. We agree that the existing development provides no landscaped area and that the proposed development currently provides 16m2 of landscaped area, representing 10.2% of the site area. This is because the current stormwater plans identify a rain water tank and osd tank within some of the proposed landscape areas as per plan Drawing 021A Issue DA dated June 2020, Landscape Plan. […]"
I am satisfied that the impact of the stormwater plans on the landscaping has been addressed by the Planning Experts.
The Respondent relies on the evidence of Mr Goodyer as to why the Court should not be satisfied of the matters required for a cl 4.6 variation which is found at [27]-[41] of the Joint Expert Report. In summary Mr Goodyer's opinion is that the Proposed Development fails to satisfy three of the four objectives of the landscape development standard and concludes at [41] as follows: "41. In my opinion, the references to "enhance the environmental sustainability of the development" and to provide "areas for open space with appropriate drainage" clearly indicate a desire to provide planting areas and not simply 'hard' landscaped areas or planter boxes. The proposal provides a landscaped area that is less than that required by the suite of planning controls and has failed to integrate the stormwater design with the proposed landscaping."
In the Joint Expert Report Mr Goodyer summarises the landscaping to be provided referring to Drawing 021A "Landscape Plan" at [28] as follows: "[28] […] The landscaping to be provided consists of: - Three trees ("crepe myrtle + crab apple trees"). - Two pot plants of indeterminate size and species in the entry courtyard. - Esplaier mereya hedge to the western boundary for a length of approximately 10 metres at the rear of the site. - "Green wall" length of 3.0 metres to the eastern side of the entry courtyard under the "pergola to future detail". - "Green wall" length of approximately 4.5 metres to the western side of the courtyard adjacent to the western boundary. - Ground cover (miniature brass button or similar)."
And at [29] Mr Goodyer concludes as follows: "[29] The proposal does not provide substantial tree planting. Three trees are shown on the Landscape Plan (Drawing 02A), identified as "crepe myrtle + crab apple trees". These trees are located within the entry courtyard under a "pergola to future detail". The pergola is shown on Drawing 004 as having a clear height of approximately 2.4m above the ground level. The pergola will limit the ability of these trees to grow to their normal mature height."
During the hearing the Planning Experts were cross examined in relation to one of the landscape development standard objective (a) in particular regarding 'substantial tree planting' and the Applicant's proposal to have trees in the front courtyard under pergola. The parties have agreed to draft Conditions of Consent, filed 15 July 2020, which include the following condition which addresses Mr Goodyer's concern: "3. Prior to the issue of a Construction Certificate, the Certifying Authority must be provided with amended plans incorporating the following amendments" […] b) An updated Landscape Plan consistent with the Updated Stormwater Design Drawing 2115, incorporating changes to reduce the size of the pergola."
Landscape corridor Joint Expert Report at [32] Mr Goodyer acknowledges that "[32] […] The proposal does not provide any landscaped corridors on the eastern and northern sides, although this is due to the siting of the existing building." [33] […] the proposal is not antipathetic to objective (c)."
Finally, the Respondent submits that given there is no longer an issue with contamination of the Site, there is no barrier to the Applicant disturbing the existing concrete slab or removing existing paving in order to meet the requirements for landscaping in cl 4.3A of the LLEP, both in terms of quantum of landscaped area and the achievement of the objectives of the controls.
Ms Deegan on satisfying the objectives of the Landscape development standard is referred to at [88] in the Joint Expert Report and notes that the Landscape Variation Request "has considered the landscaping standard objectives and objectives of the zone." which is a relevant analysis required to adequately addressed the requirement to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) and required to support the proposition that 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 to be carried out (cl 4.6(4)(a)(ii)). I have referred to table 1 at pages 10 - 16 and to table 2 at pages 18 to 21 in the Landscape Variation Request and I accept the following conclusions: "As demonstrated in Table 1 above, the objectives of the landscaped area/site coverage development standard are achieved notwithstanding the proposed variation. In accordance with the decision in Webhe v Pittwater Council [2007] NSWLEC 827, Initial Action Pty Limited v Woollahra Municipal Council [2018] NSWLEC 118, Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 and RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 and SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 112 at [31], therefore, compliance with the landscape/site coverage development standard is demonstrated to be unreasonable or unnecessary and the requirements of clause 4.6(3)(a) have been met on this way alone." (page 16 of the Landscape Variation Request). "As demonstrated in Table 2, the proposal is consistent with the objectives of the zone and in Section 5 it was demonstrated that the proposal is consistent with the objectives of the development standard. According to clause 4.6(4)(a)(ii), therefore, the proposal is in the public interest." (page 21 of the Landscape Variation Request)"
Sufficient Environmental Planning Grounds cl 4.6(3)(b) and cl 4.6(4)(a)(i)- Landscape Variation Request at page 17 relies on the decision of Pain J in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 and states that: "In Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90, Pain J observed that it is within the discretion of the consent authority to consider whether the environmental planning grounds relied on are particular to the circumstances of the proposed development on the particular site."
Mr Goodyer in the Joint Expert Report at [37] expresses his opinion regarding whether there are sufficient environmental planning grounds as follows: "37. In my opinion there are insufficient environmental planning grounds to justify the variation to the control that is proposed. The site is rectangular in shape and there are no site constraints that prevent achievement of the control. Consideration should be given to how best to achieve the objectives of the control whilst providing the required quantum of landscaped area. The application fails to do this, despite confirmation that capping of the site is not required due to the risk of land contamination."
The Landscape Variation Request concludes at page 17 that, the proposal demonstrates that it has sufficient planning grounds to vary the development standard as set out below, which I accept: "The proposal promotes the order and economic use and development of land through the residential conversion of an existing warehouse in a general residential zone, thus changing a prohibited use to one which is permissible with consent. The proposal utilises what was previously a vacant warehouse for the provision of additional housing to the area, which is easily accessible by its proximity to Marion Light Rail station and numerous bus route located on Foster and Marion Streets. The proposal is well designed through the reduction of the existing site coverage through the incorporate of courtyard areas which, when fully landscaped, provide natural amenity for residents, whilst still preserving the privacy of neighbours. Thus, the proposal demonstrates that it has sufficient planning grounds to vary the development standard."
I am satisfied that the Applicant's Landscape Variation Request has adequately addressed the requirement to demonstrate that compliance with the Landscape development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)). I accept that it has been demonstrated that compliance is unreasonable in the context of an adaptive reuse of a now prohibited warehouse with no provision of landscaping to a residential dwelling as described by Ms Deegan above at [89] and [91] of the Joint Expert Report. This has been adequately demonstrated in the Landscape Variation Request at pages 10 to 16 in the extensive consideration of how the Proposed Development achieves the objectives of the Landscape development standard in cl 4.3A LLEP 2013 notwithstanding the non-compliance with that development standard.
I am satisfied that the Applicant's Landscape Variation Request has adequately addressed the requirement to demonstrate that there are sufficient environmental planning grounds to justify contravening the Landscape development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)) and I accept the environmental planning grounds set out at page 17 of the Landscape Variation Request as to the promotion of orderly and economic use and development of land through the residential conversion of an existing warehouse in a general residential zone and the Proposed Development is well designed through the reduction of the existing site coverage through the incorporation of courtyard areas which, when fully landscaped, provide natural amenity for residents, whilst still preserving the privacy of neighbours.
I am satisfied that the Proposed Development will be in the public interest because it is consistent with the objectives of the Landscape development standard and the objectives for development within the R1 General Residential zone in which the development is to be carried out (cl 4.6(4)(a)(ii)) for the reasons set out at [87] above and in relation to the objectives of the R1 General Residential zone, the Applicant's Landscape Variation Request considers the objectives of the R1 General Residential zone at pages 18 to 21 and concludes at page 21 that: "the proposal is consistent with the objectives of the zone and in Section 5 it was demonstrated that the proposal is consistent with the objectives of the development standard. According to clause 4.6(4)(a)(ii), therefore, the proposal is in the public interest."

Findings

Having set out the competing propositions and having considered the evidence and the submissions of the parties, I find that: 1. The bulk and scale of the Proposed Development will have minor and reasonable impacts in the circumstances (refer above at [24]). 2. It is appropriate to vary the FSR development standard (cl 4.6 and cl 4.4 of the LLEP 2013) (refer above at [44]-[46]). 3. The increase in the floor space ratio is generally contained within the existing building envelope (cl 6.11(3)(c) of the LLEP 2013) (refer above at [60]). 4. It is appropriate to vary the Landscape development standard (cl 4.6 and cl 4.3A of the LLEP 2013) (refer above at [87]-[89]).

Decision

For the reasons that I have set out above in this judgment, I have determined to approve the Proposed Development subject to the agreed proposed Conditions of Consent filed 15 July 2020.

Orders

The Court orders that: 1. The Applicant is granted leave to amend their development application and to rely on amended plans. 2. The Applicant's written request prepared by City Plan Strategy and Development Pty Ltd dated 30 June 2020 made pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013 to vary the Floor Space Ratio development standard at clause 4.4 of the Leichhardt Local Environmental Plan 2013 is upheld. 3. The Applicant's written request prepared by City Plan Strategy and Development Pty Ltd dated 30 June 2020 made pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013 to vary the Landscape development standard at clause 4.3A of the Leichhardt Local Environmental Plan 2013 is upheld. 4. The appeal is upheld. 5. The Applicant's development application DA D/2018/341 for alterations and additions to an existing single storey warehouse building and change of use to residential dwelling, and associated works at 217 Marion Street, Leichhardt is determined by the grant of consent, subject to the conditions attached at Annexure "A".

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2020

(2018) 233 LGERA 170

(2018) 236 LGERA 256

(2003) 131 LGERA 390

(2007) 156 LGERA 446

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Judgment (11 paragraphs)

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Cases Cited (11)