[2018] NSWLEC 118
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446
Source
Original judgment source is linked above.
Catchwords
[2018] NSWLEC 118
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446
Judgment (5 paragraphs)
[1]
The applicant's written request to contravene the minimum dwelling density development standard
The first opinion of satisfaction required by s 4.6(4)(a)(i) of the Precinct Plan 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 s 4.6(3) (see Initial Action at [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 s 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 at [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 s 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 Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] ("Wehbe") and repeated in Initial Action [17]-[21]:
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. the 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 development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the standard are achieved, notwithstanding the non-compliance with the minimum dwelling density development standard.
The grounds relied on by the applicant in the written request under s 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 at [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 at [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 at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). 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 at [24]).
I am satisfied, pursuant to s 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by s 4.6(3). The applicant's written request defends the non-compliance with the development standard as justified because Lot 22 will be further developed at a future stage of the subdivision in order to ensure the orderly and economic development of the subject site and the adjoining property to the east. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].
[2]
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 s 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 at [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action at [26]).
I am satisfied, for the reasons set out in the written request, that the objectives of the development standard and the zone are achieved by the proposal.
[3]
Conclusion
I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 5 April 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.
[4]
Orders
The orders of the Court are:
1. The Applicant is to pay the Council's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $3,000.
2. The appeal is upheld.
3. Development Application No. DA-470/2022, for the subdivision of Lot 22 in Deposited Plan 1286912 and the Torrens Title subdivision of 21 residential lots, construction of twelve (12) dwellings (in 6 semi-detached built forms), and one (1) residue super-lot set aside for future development, site remediation, dam demolition and de-watering, construction of roads, tree removal and associated civil works, over two (2) stages, on land legally described as Lot 22 in DP 1286912 (formally Lot 2 in DP 201643) and known as 140 Sixth Avenue, Austral, NSW, 2179, is determined by the grant of consent subject to the conditions of consent at Annexure A.
Susan O'Neill
Commissioner of the Court
[5]
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: 19 April 2023
Parties
Applicant/Plaintiff:
UPG 245 Pty Ltd
Respondent/Defendant:
Liverpool City Council
Cases Cited (7)
Contravention of the minimum dwelling density development standard
The minimum dwelling density development standard, pursuant to s 4.1B of the Precinct Plan for the site is 20 dwellings per hectare. The objectives of the development standard are:
(a) to establish minimum density requirements for residential development, and
(b) to ensure that residential development makes efficient use of land and infrastructure, and contributes to the availability of new housing, and
(c) to ensure that the scale of residential development is compatible with the character of the precinct and adjoining land.
The net developable area of the site is 1.292400 ha (including superlot 22). The minimum number of lots required is 26, with 22 lots proposed. As Lot 22 is a superlot which is intended to be subdivided in the future, a condition of consent has been imposed (condition 107) which requires that proposed Lot 22 to be developed for residential purposes with no less than 5 dwellings/allotments.
The Applicant provided a written request to vary the development standard, pursuant to s 4.6 of the Precinct Plan.
Section 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) 236 LGERA 256; [2018] NSWLEC 118 at [13] "Initial Action"). The consent authority must form two positive opinions of satisfaction under s 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 s 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 s 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 s 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(6) LEC Act, but should still consider the matters in s 4.6(5) of the Precinct Plan (Initial Action at [29]).